Attorneys Fees: Another Walk In the Woods case!

Saturday, June 3, 2006 | 0

Wood v. Florida Rock Industries & Crawford & Co. 31 Fla. L. Weekly D1458a

What Has Happened:

The First DCA has decided on rehearing to certify to the Supreme Court the question: Was the First DCA correct when it held that the "Schedule" is the only available fee (apart from medical only claims) under the '03 amendments?

OVERVIEW: This is an anticipatory landmark alert, meaning, nothing has changed - - YET! The previous holding in Woods "sticks," for the time being, meaning as for fees: it's all scheduled, all the time. Normally, MKRS would not issue a landmark alert unless and until something actually changed - - however - - we make an exception here because the indirect impact of the Court's surprise action may start being felt immediately.

On 2/13/06, the First DCA decided (in accord with MKRS projections made in our original "50 New Law Hotpoints" bulletin issued 10-1-03), the only permissible interpretation of the '03 fee amendments is: the schedule applies to all cases, in all situations, (except medical only claims), period (i.e., regardless of the word "reasonable" appearing within the statutory text). Worth noting however is Judge Barfield's remarkable concurring opinion which seemed to take Claimant's attorney to task for not challenging the constitutionality of the fee amendment, which he then took a pot shot at ("The validity of the statute which severely impairs, if not eliminates, the ability of claimants to obtain the assistance of counsel, has not been raised."). One Judge is seriously thinking the statute might be unconstitutional.

There are several other cases in the pipeline that entail direct challenges to the statute (example: Lundy v. Four Seasons Hotel, in which MKRS was privileged to serve as a consultant on behalf of Amicus Curiae FIC and AIF). Without having decided any of those as of yet (some are ripe on an "any day" basis now), suddenly and surprisingly, the Court decided to pass this particular buck on to the Supreme Court.

Technically, the "question" the Supreme Court is supposed to address is whether the District Court's interpretation is correct purely on the basis of the statutory language and to make no other determinations (i.e. no "constitutional" considerations). MKRS believes that question can easily, and should be interpreted in the affirmative: Yes; all schedule, all the time. However, there is another interesting concurring opinion; another Judge (Wolf) seems to be scolding counsel and the Amicus Curiae for trying to raise constitutionality as part of the Supreme Court's assignment where it was not properly made an issue in the case. However...

MKRS' Analysis: it does appear to most (but not all) commentators consulted that when the Supreme Court accepts jurisdiction in a case, it can assume jurisdiction over every single aspect of the case, i.e., the concurring Judge may be incorrect in his belief the Supreme Court's hands are tied to only the "interpretation" issue. What this means; it is possible the Supreme Court will also tackle constitutionality.

Discussion:

Q: When is the Supreme Court likely to rule?

A: Anytime it wants. Really.

Q: OK, gut feeling: when?

A: OK, within six to nine months.

Q: What about the other pending "test" cases?

A: It's something of a mess, but it's possible several will be kicked up to the Supreme Court in a row, as was seen in the "Alderman" SSDI set-off cases, and then disposed of in a single opinion, but that will take much longer to wrap up.

Q: What strategic implications are there NOW?

A: This question is the reason we issued an alert: although nothing is changed until and unless the Supreme Court rules - - Claimants' attorneys' minds - - or at least their mind sets - - may be changing! It may now become more difficult to settle small cases with large "hours," although the other side of the coin is, they may want to move on huge cases with tiny hours because the schedule actually helps the Claimant's attorney in that situation, (example: a $20,000.00 "schedule" fee with only 15 hours of work, say, on a "late acceptance" case). In most cases however, Claimants' attorneys may start holding onto inventory - - and/or - - taking the small cases that were beginning to disappear from the system.

Conclusion:

Bottom line for now; - - The court's original "the schedule is it" ruling still governs until and unless the Supreme Court disagrees, but, the indirect impact may be to embolden the Claimant's bar to "hold 'em -- not fold 'em -- for the time being!

Woods was an important step but as MKRS advised at the time, especially because of the hints in the concurring opinion, the "other shoe" had not yet dropped - - and based on cases now in the pipeline, something can still happen at the DCA level. This new development creates more, not less, uncertainty, plain and simple. We may yet see the District Court rule on one of the "constitutionality" cases which will almost certainly go to the Supreme Court. The ultimate question we cannot answer today is: where the law will be sitting when the music stops!?

by H. George Kagan of the MKRS lawfirm. George can be reached by e-mail at GeorgeK@mkrs.com, or phone at 800.761.MKRS.

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