Nature and Purpose
Purpose of Attorneys’ Fees
Fair compensation for legal services promotes the independence and integrity of the legal profession . Without independence and integrity, the effectiveness of legal services would decline [R. Regulating Fla. Bar 4-1.7, comment, 4-2.1, comment].
Establishment of Right to Fee
The right to compensation for legal services is typically established by an agreement between the attorney and client. When an attorney seeks to recover fees from a client, the court may grant the amount for which the parties contracted as long as that amount is found to be reasonable. If no agreement was made, a lawyer may be entitled to the reasonable value of services actually rendered. In this event, the amount of compensation is at the discretion of the court, whose opinion may be based on the testimony of other attorneys as to the value of legal services provided under similar circumstances.
One spouse may seek a court order for the payment of his or her attorneys’ fees by the other party [see, e.g., Fla. Stat. 61.16, 742.031]. Nevertheless, a lawyer and client should enter into a fee agreement to define the services to be rendered and the fee to be paid. A court award will not necessarily cover all of the fees incurred by a client. If a fee contract exists, the attorney may subsequently recover from a client the agreed fees that exceed the court award. Differences between court-awarded and contractual fees may arise because the court order is based not only on the actual work required and the expenses incurred by the attorney, but also on the court’s understanding of the client’s need for the award and of the opposing party’s ability to pay it. Thus, a court-awarded fee may vary from a contractual fee, which reflects a lawyer’s estimate of the value of the legal services and the time needed for performance.
Temporary attorneys’ fees are based in part on a determination of the scope of the issues to be resolved in the underlying proceeding. For example, in a dissolution of marriage case involving only property issues, determining the scope of equitable distribution will in turn indicate how much discovery is required, and therefore what amount of attorneys’ fees the requesting spouse will need.
A court may not award attorneys’ fees to the respondent in an enforcement action if he or she has not complied with the order sought to be enforced and the noncompliance is unjustified [Fla. Stat. 61.16]. Obviously, counsel representing a respondent in an enforcement action should secure his or her client’s promise to pay fees for legal services.
Determination of Amount of Fee
 Fees Prescribed by Statute
A lawyer must not enter into an agreement for, charge, or collect a fee that is illegal in that it exceeds the amount prescribed by statute [see R. Regulating Fla. Bar 4-1.5(a); see, e.g., Fla. Stat. 63.212(4)]. A lawyer will not only be unable to enforce a contract for illegal fees, but may also be subject to a fine, imprisonment, and a disciplinary action, which may result in the suspension or revocation of his or her license to practice law [see R. Regulating Fla. Bar3-4.2, 3-5.1, 4-1.5(a); see also R. Regulating Fla. Barch. 4, Preamble]. Such penalities may be imposed pursuant to an investigation and hearings on the complaint of any party or on the court’s own motion [see R. Regulating Fla. Bar3-3.2(a), 3-7.3(a), 3-7.7(a)].
If a statute grants authority to a court to order one party to pay the attorneys’ fees that the other has incurred [see, e.g., Fla. Stat. 61.16, 742.031], compensation set by an agreement between the attorney and client is not illegal merely because the fee contracted for exceeds the subsequent court award.
 Reasonable Fees
[a] Determination of Reasonableness.
A “reasonable” attorneys’ fee is one that is neither excessive [see R. Regulating Fla. Bar, 4-1.5(b)] nor inadequate. Excessive attorneys’ fees are presumed to deter or prevent clients from utilizing the legal system to protect their rights [see R. Regulating Fla. Bar 4-1.5 (comment), 4-1.6 (comment), 4-1.5(A), (B) (comment)]. whereas inadequate fees may decrease the effectiveness of legal assistance because the attorney does not receive fair compensation to which he or she is entitled. Compensation for legal services is “excessive” if an attorney who is of ordinary prudence and who has reviewed the facts would hold a definite and firm conviction that the fee constitutes clear overreaching or unconscionability. A fee will also be found to be excessive if the lawyer sought or secured its payment by means of intentional misrepresentation or fraud either as to a client, nonclient, or a court. A similar test is applied to a court-awarded fee that appears to be “inadequate”; that is, the amount must be clearly insufficient to compensate for the legal work performed.
A determination of the reasonableness of an attorney’s fee depends on an examination of all of the relevant circumstances that are present in each case R. Regulating Fla. Bar 4-1.5(b)], as well as of the interests of the attorney and the client [R. Regulating Fla. Bar 4-1.5(a), (b) (comment)]. Rule Regulating the Florida Bar 4-1.5 sets forth factors for ascertaining reasonable fees. Under the Rule, counsel should consider the nature of the legal services required and the estimated time for performance in relation to fees customarily charged by other lawyers in the same locality and to counsel’s own experience, reputation, and ability when setting a fee for a case. The Florida Supreme Court has held that the factors stated in Rule 4-1.5 are relevant to deciding the reasonableness of fees to be charged against a third party.
[b] Time, Difficulty, and Expertise.
Factors that an attorney and a court may consider in determining reasonableness of compensation for legal services include [R. Regulating Fla. Bar 4-1.5(b)]:
- The time and labor required to perform the work;
- The novelty, complexity, and difficulty of the questions involved;
- The skill required to perform the work properly;
- The experience, reputation, diligence, and ability of the lawyer or lawyers performing the services and the skill, expertise, or efficiency of effort reflected in the actual rendition of such services; and
- The amount of work undertaken by the attorney.
[c] Amount in Controversy and Result Obtained.
Compensation for legal services may be set in proportion to the amount in controversy and the benefits obtained for the client [R. Regulating Fla. Bar 4-1.5(b)(4)]. A higher amount of attorneys’ fees would be justified when a substantial amount is in controversy because of the probable difficulties encountered with respect to discovering the numerous assets held and income sources available, ascertaining the value and ownership of the assets and income, and establishing a client’s claims thereto against strong opposition from the other party who seeks to avoid surrendering income and property rights.
[d] Time Limitations and Preclusion of Other Legal Employment.
In certain situations, a client’s case may require immediate action or all of the attorney’s time to the exclusion of other legal employment. Such special attention may be a condition imposed by the client or demanded by the circumstances of the case, such as the running of a statute of limitations or the legal complexities involved. These factors may also occur in combination; the need to devote all attention to one client’s case may be due to time restraints. A lawyer is entitled to charge a higher fee to a client whose case is subject to time limitations [R. Regulating Fla. Bar 4-1.5(b)(5)], or whose case will preclude the attorney from accepting other legal employment [R. Regulating Fla. Bar 4-1.5(b)(2)]. An increased fee is appropriate because of the pressures under which the attorney is required to work and because of the fact that the attorney may have to postpone other matters, refer cases that cannot be delayed to other attorneys, and forego employment offered by prospective clients. A lawyer who must forgo other employment because of the acceptance of a client’s case may consider this fact in proposing a fee arrangement, as long as it is apparent to the client [see R. Regulating Fla. Bar 4-1.5(b)(2)].
[e] Relationship With Client.
An attorney may offer a discounted fee to certain preferred clients [see R. Regulating Fla. Bar 4-1.5(b)(6)]. For example, a lawyer may offer a lower rate to show appreciation for the continued business of a client who has regularly employed the attorney [see R. Regulating Fla. Bar 4-1.5(b)(6)]. In addition, an attorney may charge special rates for services that are rendered to another lawyer or to a family member [R. Regulating Fla. Bar 4-1.5(b)].
[f] Customary Fees.
An attorney’s fees should be commensurate with the rates that other lawyers in the locality charge for similar services not only for purposes of determining the reasonableness of the fee [see R. Regulating Fla. Bar 4-1.5(b)(3)], but also to be equally competitive with the rates of the other lawyers. Counsel should consult other members of the local bar, as well as such sources as economic reports of the state and local bar associations, to provide guidance as to the reasonableness of fees.
An agreement for attorneys’ fees will often require the client to pay a retainer fee before the attorney will provide services. The term “retainer” can describe several types of fee arrangements. The most common of these is an agreement for a fee that is paid to secure legal services for a variety of matters that may arise during a specified period. The types of matters for which services are to be rendered may be limited by the retainer contract. Pursuant to a continuing retainer agreement, a lawyer may remain available to provide legal services to the client at a stipulated monthly or yearly rate. Although an attorney who has been employed under this type of retainer may handle family law concerns if requested by the client, this arrangement is more common in business situations, in which frequent legal transactions and questions arise.
In the context of family law matters, an attorney is generally employed to resolve only the particular matter involved and any related items. Thus, the retainer fee is usually a lump-sum amount that the client pays at the time the attorney is hired and that the attorney then applies to the total fee for the action. For the client, the purpose of such a retainer is to secure the lawyer’s services with regard to the designated matter. From counsel’s viewpoint, receipt of a retainer ensures payment of part or all of the fee for the services rendered and indicates that the client is sincerely committed to obtaining the services.
The decision to charge a retainer, and the determination of its amount, will depend on the same factors that must be considered in setting a reasonable fee, such as the time and expertise required for the services, the experience and reputation of the attorney, the exclusivity of the services, and the financial ability of the client to remit a lump sum before the legal services are commenced.
[b] Periodic Fee.
A common fee arrangement for legal services in connection with a family law matter is a periodic fee contract, which sets forth agreed hourly or daily rates that are billed from time to time. Because an hourly or daily rate is stated in the contract, a periodic fee contract can also be called a fixed fee contract.
A periodic fee contract is preferred if the time for completion of a particular legal action, such as a proceeding for the dissolution of a marriage or the enforcement of a child support and visitation order, is indefinite. Fixed hourly or daily fees allow an attorney to receive compensation even if the result of the services provided is not the outcome sought by the client. However, if the fee is fixed as to rate, a factor to be considered in determining the reasonableness of the fee is whether the client’s ability to pay rested to any significant extent on the outcome of the representation [R. Regulating Fla. Bar 4-1.5(b)(8)]. As compared to a flat or a contingent fee, a fixed hourly or daily fee will more accurately reflect the time that the attorney actually spends in serving the client [see [c], [d], below].
An hourly or daily rate should represent the reasonable value of the attorney’s services, including the quantity, exclusivity, and difficulty thereof [see R. Regulating Fla. Bar 4-1.5(b)]. For this reason, the attorney may propose to charge for certain services on a daily basis and for other work on an hourly basis. Thus, time that is spent in trial may be billed at a daily rate, while work involved in preparing and filing court documents, conferring with the client, attending depositions, and negotating settlements may be charged at an hourly rate. In any event, the attorney should advise the client of the rate that will be applied to various types of legal services.
In addition to requiring periodic payment for services as they are performed, a periodic fee contract may require that the client object to a billing within a certain time after receipt of the bill. Such a provision is enforceable. It allows the client to control the ultimate fee by monitoring the time spent by the attorney. If the amount of time exceeds the client’s expectations, he or she may end further expenditure of time before the amount due rises above his or her means. Such a provision also protects the attorney from being confronted with objections after time is already spent on the matter, under circumstances in which the attorney could have avoided spending the time if objection had been made sooner. Allowing the client to first raise objections after the attorney files a suit to recover fees eliminates an essential purpose of a contractual provision designed for the parties’ mutual benefit. Thus, a client’s failure to timely object to the hours as they are billed waives any objection to the number of hours billed and operates as a tacit admission of the reasonableness of the billings.
[c] Flat Fee.
An attorney may charge a flat fee for a single transaction when the amount of time for performance of the service can easily be predicted from similar undertakings for other clients in the past [see R. Regulating Fla. Bar 4-1.5(b)(3), (7), (8)]. Thus, a lawyer may charge a husband and wife a flat fee to draft their wills or to prepare a deed and contract of sale for the transfer of property between the spouses. A contract that states a flat fee for an attorney’s services is a fixed fee contract, as distinguished from a contingent fee contract [see R. Reg. Fla. Bar 4-1.5(b)(8) (attorney’s fee may be fixed as to amount or rate); see also [b], above (hourly- and daily-rate fee contracts), [d], below (contingent fee contracts)]. The reasonableness of a flat fee will be determined in part by determining whether the client’s ability to pay was based to any significant extent on the outcome of the representation [see R. Reg. Fla. Bar 4-1.5(b)(8)].
[d] Contingent Fee.
A contingent fee for legal services is measured exclusively or predominately by the financial results obtained by the attorney [Valparaiso Bank & Trust Co. v. Sims, 343 So. 2d 967, 971 (Fla. 1st DCA 1977)]. Under a contingent fee arrangement, a lawyer receives compensation that consists of a percentage of the recovery obtained for the client or of the value of the completed transaction or project. Payment of the attorney’s fee is usually dependent on a favorable result for the client; counsel will not be paid if the outcome is not to the client’s advantage, although the client may agree to reimburse the attorney for suit money and costs.
With regard to family law matters, the use of a contingent fee arrangement is limited. A lawyer must not contract for, charge, or collect a contingent fee in a domestic relations matter if the payment or amount of the fee depends either on the securing of a divorce or on the amount of alimony or support received (or of a property settlement received in lieu thereof) [R. Regulating Fla. Bar 4-1.5(f)(3)]. Contingent fees in these situations are considered to promote the divorce or separation of married parties that may lead to divorce, because the attorney will not be compensated unless the legal services result in a judgment for divorce, alimony or support, or a property settlement instead of alimony or support.
Nature of Award of Attorneys’ Fees
An award of attorneys’ fees that directs one party in an action to pay the reasonable attorneys’ fees of the other party may be contained in a court order or decree as long as the court has jurisdiction to make such an award. In general, a party does not have an absolute right to an award of attorneys’ fees; such an award is within the court’s discretion. However, that discretion is limited in that the court must apply certain criteria to determine when an award is appropriate, as well as the amount of the award.
Jurisdiction to Award
Attorneys’ fees may be awarded only when:
- Permitted by statute.
- Granted by administrative or court rule.
- Authorized by an agreement between the parties.
- Allowed in equity for legal services that create or bring into court a fund or other property from which the fees may be paid.
A court also has jurisdiction to award attorneys’ fees against counsel or a party who litigate in bad faith. The authority arises not from statute or rule, but from the courts’ inherent power to impose such sanctions.
Dissolution of Marriage
Prerequisites for Award.
From time to time, a court may order a party to pay a reasonable amount for attorneys’ fees incurred in maintaining or opposing a dissolution of marriage action [Fla. Stat. 61.16]. Pursuant to Florida Statutes Section 61.16, fees may be granted to a party when:
- the action is for the dissolution of a marriage;
- an award of fees is appropriate under the circumstances; and
- the amount of fees is reasonable.
[A] Purpose of Award.
The purpose of an award of attorneys’ fees is to ensure that both parties have an equal opportunity to secure competent counsel [Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990); Peak v. Peak, 411 So. 2d 325, 328 (Fla. 5th DCA 1982)]. Therefore, in determining whether to award attorneys’ fees in an action for dissolution of marriage, a court must consider the financial resources of both parties and base the award primarily on the respective financial abilities of the parties to secure competent counsel [see Rosen v. Rosen, 696 So. 2d 697, 699700 (Fla. 1997); see also Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990); see Fla. Stat. 61.16]. In general, a court may award attorneys’ fees when the evidence demonstrates that [Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla. 1980); Di Prima v. Di Prima, 435 So. 2d 876, 879 (Fla. 5th DCA 1983), review denied, 447 So. 2d 886 (Fla. 1983)]:
- the party who seeks the award requires such financial relief, and
- the other party has the financial ability to pay the fees.
The court must make specific findings of fact regarding the parties’ respective financial needs and abilities to pay [Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002); see Fla. Stat. 61.16(1)].
Although the parties’ financial resources are a primary factor in determining entitlement to attorneys’ fees, the court must also consider all other circumstances surrounding the litigation in determining entitlement to attorneys’ fees [see Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997).
[B] Determining Ability to Pay Fees.
A spouse’s ability to pay an award of fees may consist of income from full-time employment or income from other sources, such as a pension or an investment. Florida Statutes Section 61.046(7) defines the term “income” for purposes of determining an award of attorneys’ fees [see Zold v. Zold, 911 So. 2d 1222, 12281229 (Fla. 2005)]. Section 61.046(7) states that income is “any form of payment to an individual, regardless of source, including but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.” This statutory definition refers to income that is actually available to a spouse to satisfy financial obligations [see Zold v. Zold, 911 So. 2d 1222, 1229 (Fla. 2005)]. The statute excludes United States Department of Veteran Affairs disability benefits and unemployment compensation as defined in Florida Statutes Chapter 443 from income, except for purposes of establishing “an amount of support” [see Fla. Stat. 61.046(7)].
Assets may also serve as a resource for the payment of attorneys’ fees. Whatever the source, the obligor-spouse has the ability to pay only if the income or value of the assets is sufficient to meet the obligation imposed by the court without creating financial difficulties for the payor spouse
A court may impute income to a spouse for the purpose of determining his or her ability to pay attorneys’ fees. For example, income may be imputed to a spouse who has quit his or her job because the income provided by his or her cohabitant or new spouse has allowed such voluntary unemployment [see Arouza v. Arouza, 670 So. 2d 69, 71 (Fla. 3d DCA 1995)].
An obligor’s share of the parties’ marital assets is a resource from which attorneys’ fees may be paid. Further, the obligor’s nonmarital assets are a possible source of funds.
Party Who Prevails.
In a dissolution action, the party awarded attorneys’ fees need not be the prevailing party; instead, a court must consider the relative financial resources of both parties
Misconduct During Marriage.
A court may not deny or grant attorneys’ fees solely on the basis of a spouse’s misconduct that caused the marriage to dissolve [McLendon v. McLendon, 483 So. 2d 498, 499 (Fla. 1st DCA 1986)].
Misconduct Concerning Litigation
In Rosen v. Rosen [696 So. 2d 697, 701 (Fla. 1997)], the Florida Supreme Court held that in determining whether to award attorneys’ fees in a dissolution of marriage proceeding pursuant to Florida Statutes Section 61.16, a trial court may consider all the circumstances, including each party’s conduct during the litigation [see Rosen v. Rosen, 696 So. 2d 697, 700701 (Fla. 1997)]. Thus, attorneys’ fees may be denied if the party requesting them engaged in frivolous or spurious litigation, or litigation intended primarily to harass the adverse party [see Rosen v. Rosen, 696 So. 2d 697, 701 (Fla. 1997). Also, if a party’s attorney is required to perform additional legal services because of misconduct of the other party during the dissolution proceedings, the court may assess the fees for those legal services against the party who has acted in such manner [Wrona v. Wrona, 592 So. 2d 694, 698 (Fla. 2d DCA 1991) (if parties have expended marital resources on avoidable litigation, court may adjust equitable distribution so that party that caused depletion of marital resources will bear economic consequences); Johnson v. Johnson, 396 So. 2d 192, 193 (Fla. 4th DCA 1980); see Kalmanson v. Kalmanson, 796 So. 2d 1249 (Fla. 5th DCA 2001)].
Unsupported Claims or Defenses.
On its own motion or the motion of a party, and at any time during the proceedings, a court must award a reasonable attorneys’ fee and prejudgment interest to the prevailing party in any civil action, such as a marriage dissolution proceeding or an action for enforcement of a divorce decree [see Fla. Stat. 61.16(1)], if it finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense (1) was not supported by the material facts necessary to establish the claim or defense, or (2) would not be supported by the application of then-existing law to those material facts [Fla. Stat. 57.105(1)]. Further, a court may award fees only if the losing party or his or her attorney should have known that a claim was unsupported before trial [Fla. Stat. 57.105(1)]. There is no liability for attorneys’ fees on the ground a claim or defense was not supported by the law when the trial court determines [Fla. Stat. 57.105(2)]:
- That the party’s claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, based on the material facts.
- The party had a reasonable expectation of success in making the argument.
Previously, the general statue governing awards of attorneys’ fees for unsupported claims allowed such awards to be made only if there was a complete absence of a justiciable issue of law or fact raised by the losing party in his or her claim or defense [see former Fla. Stat. 57.105(1)]. In one case decided under this prior version of the statute, a former spouse was required to pay alimony to the other party pursuant to their marital settlement agreement. The payor had also waived all rights to modification of the amounts in the event that the payee should subsequently become employed or should receive substantial proceeds from the sale of the marital home. Because these rights had been contractually waived, the court held that an action for modification on these grounds was totally meritless and that the payor should pay all of the payee’s reasonable attorneys’ fees expended in opposing the action [Jaffee v. Jaffee, 394 So. 2d 443, 447 (Fla. 3d DCA 1981)].
A court may award damages, including attorneys’ fees, to a party who is forced to seek a court order in response to any action taken by the opposing party primarily for the purpose of unreasonable delay [Fla. Stat. 57.105(3)]. The party seeking the damages may make a motion to recover them at any time during the proceedings, and must show by a preponderance of the evidence that the opposing party acted for the primary purpose of delay [Fla. Stat. 57.105(3)]. Actions taken for the purpose of delay by the opposing party may include the filing of a pleading or a portion of a pleading, the assertion of or response to a discovery demand, the assertion of any claim or defense, or the response to any request by any other party [Fla. Stat. 57.105(3)]. The moving party may recover damages for his or her reasonable expenses incurred in obtaining the order, including attorneys’ fees, and other losses resulting from the improper delay [Fla. Stat. 57.105(3)].
Department of Revenue Child Support Actions
In a paternity or child support action brought by the Department of Revenue, the court may assess costs and fees against a nonprevailing obligor if the court determines that the obligor has the ability to pay. Such costs and fees may include filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court [Fla. Stat. 61.16(1), 409.2567, 742.045, 742.08]. In any case in which a court does not award all costs, the court must state in the record why it did not award the costs [Fla. Stat. 409.2567].
The Department of Revenue is required by statute to assess costs on a case-by-case basis, using a method approved by the federal government [see Fla. Stat. 409.2554(11); Gurell v. Starr, 640 So. 2d 228, 230 (Fla. 5th DCA 1994)]. However, regulations established by the Department of Revenue’s predecessor agency, the Department of Health and Rehabilitative Services (HRS), established a standardized fee schedule to be used to assess administrative costs in child support enforcement actions [see Fla. Admin. Code R. 10C-25.0035(2)(d)2]. The Fifth District has recently questioned the validity of the fee schedule used by HRS, noting that the schedule may not comply with state and federal law, may not accurately reflect the fees actually incurred by HRS, and may, in fact, violate an individual’s right to substantive due process [see Gurell v. Starr, 640 So. 2d 228, 230231 (Fla. 5th DCA 1994)].
The Department of Revenue is not liable for fees unless the Department or the Department’s attorney knew or should have known that a claim (1) was not supported by the material facts necessary to establish the claim, or (2) would not be supported by the application of then-existing law to those material facts [Fla. Stat. 61.16(1), 409.2567, 742.045, 742.08; see Fla. Stat. 57.105(1)]. However, an exception arises from case law existing prior to a 1992 amendment to Florida Statutes Section 61.16 that allowed a trial court to assess attorneys’ fees and costs only against a nonprevailing obligor in a child support action brought by HRS. Before the 1992 amendment, the district courts were divided on the issue of whether HRS could be required to pay a prevailing obligor’s attorneys’ fees. The Fifth District has held that HRS may still be required to pay a prevailing obligor’s attorneys’ fees under pre-1992 amendment case law if the trial proceedings occurred prior to July 1, 1993, which was the effective date of the amendment [see Department of Health v. Coyle, 624 So. 2d 400, 401 (Fla. 5th DCA 1993)].
Domestic Violence Proceedings
Attorneys’ fees are not available in a proceeding to obtain an injunction for protection against domestic violence brought pursuant to Florida Statutes Section 741.30 [Abraham v. Abraham, 700 So. 2d 421 (Fla. 3d DCA 1997); Baumgartner v. Baumgartner, 693 So. 2d 84, 84 (Fla. 2d DCA 1997); Lewis v. Lewis, 689 So. 2d 1271, 12731274 (Fla. 1st DCA 1997)]. In contrast, attorneys’ fees may be awarded under the statute governing enforcement of domestic violence injunctions [Baumgartner v. Baumgartner, 693 So. 2d 84, 86 (Fla. 2d DCA 1997); see Fla. Stat. 741.31].
Costs and Suit Money
The costs of a legal proceeding consist of the expenses that are incurred in maintaining or opposing the action. An attorney generally must collect from the client any costs that the court does not assess against the other party unless repayment of the costs is contingent on the outcome of the matter or unless the client is indigent. Awards of costs commonly include filing fees for pleadings, motions, and other court papers that do not constitute responses. Further, any award of costs is required by statute to include the following:
- The fee of an expert witness who testifies at trial, including the cost of any exhibits used by the witness [see 92.231(1)(2), Fla. Stat.; see also Lafferty v. Lafferty, 413 So. 2d 170 (Fla. 2d DCA 1982) (party who retained expert must present testimony regarding necessity and reasonableness of fee if other party objects to setting of an expert’s fee by the trial court without evidentiary hearing].
- Daily per diem and transcription charges by court reporters who attend depositions, hearings, and trials [see Fla. Stat. 57.071(1)(b) (costs that must be taxed include charges for reporting and transcribing counsel’s opening statements and arguments)].
- The reasonable premiums or expenses paid on bonds or other security furnished by a prevailing party [see Fla. Stat. 57.071(1)(a); see also Fla. Stat. 57.041(1)].
- The service charge of a court clerk who is directed by the court to sell real or personal property in accordance with the statutory procedures for judicial sales [see Fla. Stat. 45.031(1)].
The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, which are advisory only, contain three categories of coststhose that “should” be taxed, those that “may” be taxed, and those that “should not” be taxed. The Uniform Guidelines are as follows [see Fla. R. Civ. P. app. (Uniform Guidelines for Taxation of Costs); see also In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So. 2d 612 (Fla. 2005) (approving new guidelines and ordering that they be added to Florida Rules of Civil Procedure as an appendix)]:
I.Litigation Costs That Should Be Taxed.
1.The original and one copy of the deposition and court reporter’s per diem for all depositions.
2.The original and/or one copy of the electronic deposition and the cost of the services of a technician for electronic depositions used at trial.
3.Telephone toll and electronic conferencing charges for the conduct of telephone and electronic depositions.
B.Documents and Exhibits
1.The costs of copies of documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion.
2.The costs of copies obtained in discovery, even if the copies were not used at trial.
1.A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report.
1.Costs of subpoena, witness fee, and service of witnesses for deposition and/or trial.
E.Court Reporting Costs Other than for Depositions
1.Reasonable court reporter’s per diem for the reporting of evidentiary hearings, trial and post-trial hearings.
F.Reasonable Charges Incurred for Requiring Special Magistrates, Guardians Ad Litem, and Attorneys Ad Litem
II.Litigation Costs That May Be Taxed as Costs.
A.Mediation Fees and Expenses
1.Costs and fees of mediator.
B.Reasonable Travel Expenses
1.Reasonable travel expenses of expert when traveling in excess of 100 miles from the expert’s principal place of business (not to include the expert’s time).
2.Reasonable travel expenses of witnesses.
III.Litigation Costs That Should Not Be Taxed as Costs.
A.The Cost of Long Distance Telephone Calls with Witnesses, both Expert and Non-Expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial).
B.Any Expenses Relating to Consulting But Non-Testifying Experts
C.Costs Incurred in Connection with Any Matter Which Was Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence
1.Travel time of attorney(s).
2.Travel time of expert(s).
E.Travel Expenses of Attorney(s)
A court has discretion to award costs that are not included in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions.