$600 Per Hour Fee Deemed Reasonable
Lawyer's Experience, Other Factors Key
By Lynn Patrick Ingram
Case evaluation sanctions compensating a plaintiff's lead trial attorney at a rate of $600 per hour and two co-counsel at $250 per hour were not unreasonable, the Michigan Court of Appeals has ruled in an unpublished decision.
The defendant argued that the rate was predicated upon duplicative attorney work at a rate far in excess of that allowed under the court rule.
But the Court of Appeals disagreed, affirming the trial court's order awarding the plaintiff $5.25 million and awarding $946 in taxable costs and $214,000 in attorney fees in case evaluation sanctions.
"Defendant does not question Attorney [Geoffrey] Fieger's professional standing and experience as a lawyer," the panel wrote. "This case was clearly more than a 'garden-variety auto negligence case' as defendant indicates in its brief. Further, the result achieved is also a factor and a verdict of $7,000,000 was awarded when defendant had, apparently, only offered $600,000. Under these circumstances, the trial court did not abuse its discretion in awarding the $600 per hour fee requested by Attorney Fieger."
The 15-page decision is May, et al. v. City of Detroit, Lawyers Weekly No. 08-49055. Judges Kathleen Jansen, Kirsten Frank Kelly and Karen Fort Hood signed the per curiam opinion.
Worth Every Penny
The plaintiff's trial and appellate team, consisting of Franklin attorney Marsha McClure and Southfield attorneys Geoffrey N. Fieger and Tammy Reiss, told Lawyers Weekly they are not surprised by this decision.
Reiss said the defense did not have a strong argument.
"With the appeal, they were really grasping at straws and trying in vain to paint a bad picture of Geoffrey's trial skills," she noted. "They were really trying to capitalize on past Court of Appeals decisions and they were looking for every minute thing to claim was misconduct. There just wasn't any."
According to Fieger, this is not the first time he's been awarded attorney fees of $600 per hour, but he is pleased that the Court of Appeals recognized his value.
"Frankly, I'm worth it," he stated. "Although someone might think it's high in Michigan, who else has received more verdicts in the whole country than Geoffrey Fieger? Why shouldn't I get that amount of money? Six hundred dollars per hour is not at all unusual. Some of the Supreme Court specialists and New York City firms charge between $800 and $1,000 per hour. So, relatively speaking, $600 is low."
McClure added that defense counsel tried to minimize the case to support their argument that the fees were excessive.
"The defense claimed the attorney fees were excessive because this was a garden variety auto case," she said. "It wasn't. There were 22 witnesses and several attorneys."
James Braswell and the decedent, Wanda Cottrell, were crossing bumper-to-bumper traffic at Jefferson Avenue and Riopelle when they were hit in the center turn lane by a Detroit Police patrol car.
The decedent flew up in the air and landed on the ground. Braswell went through the windshield of the patrol car suffering a closed-head injury and injuries to his arms and legs.
First Things First
The panel began by rejecting the defendant's argument that the trial court erred in interpreting MCL 257.10 of the Motor Vehicle Code.
"Regardless of whether there was a crosswalk at the intersection of Jefferson and Riopelle, there was no error that affected the outcome of the trial," the panel explained. "The jury was not instructed that the intersection at Jefferson and Riopelle was a crosswalk. Defendant never requested that the jury be instructed that the intersection of Riopelle and Jefferson was not a crosswalk. The only reason for a crosswalk instruction would be comparative negligence."
In any event, "[t]he jury found that decedent was twenty-five percent negligent," the panel noted. "Additionally, defendant never contended that it made a difference whether or not plaintiff was in a crosswalk, and the question was whether defendant was negligent. For this reason, there was no plain error that affected defendant's substantial rights."
The panel also rejected the defendant's argument that the trial court erred in interpreting the emergency statutes, MCL 257.603 and MCL 257.632.
Here, "there was no error and a new trial is not warranted as the instructions given were consistent with Michigan law," the panel observed. "It is also noted, that all of the evidence from defendant's experts that Officer Scott's conduct was within the protections of the emergency vehicle statutes was presented to the jury. Accordingly, the trial court did not abuse its discretion in denying defendant's motion for a new trial in this regard."
Finally, the panel rejected the defendant's argument that the trial court erred in permitting argument on and instructing the jury on damages for conscious pain and suffering.
"From the evidence, in particular the evidence that is not in dispute, the jury could have inferred reasonably that the decedent suffered conscious pain and suffering at least for a few seconds," the panel found. "Accordingly, the trial court did not abuse its discretion in denying defendant's motion for a new trial with regard to instructing the jury on conscious pain and suffering.
No Harm, No Foul
The panel next addressed the defendant's contentions regarding instances of alleged prejudicial misconduct by the plaintiff's trial counsel.
It began this portion of its analysis by examining the rules surrounding an attorney misconduct claim.
In the Michigan Supreme Court's 1982 decision in Reetz v. Kinsman Marine Transit Co., the high court instructed that an appellate court looking at a misconduct claim should determine whether the alleged misconduct may have caused the result or played too large a part and may have denied a party a fair trial.
Further, an attorney's comments during trial warrant reversal where they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence on the verdict, the panel noted.
With these rules in mind, the panel then proceeded to address several alleged instances of misconduct by plaintiff's trial counsel.
First, it looked at plaintiff's counsel's alleged announcement to the jury that the officer who struck the decedent was engaged in phone sex, and his use of a blow up business card.
"Defendant misrepresents that plaintiff's counsel announced to the jury that [the officer] was engaged in phone sex, when all that was said in the presence of the jury was that a phone sex card was found and that 'he' knows the owner," the panel observed. "[The officer] was never mentioned as the owner of the card in the presence of the jury, and there is nothing that amounted to an error. Furthermore, the comments made by plaintiff's counsel did not indicate a deliberate course of conduct aimed at preventing a fair and impartial trial and did not deflect the jury's attention from the issues involved or have controlling influence on the verdict."
Next, the panel examined the allegation that plaintiff's counsel's allegedly injected race into the trial in an effort to discredit unfavorable testimony by a defense witness.
"In the present case, plaintiff's counsel was not deliberately attempting to incite the jury based on bigotry, as the comments were made in cross-examining a witness and were to impeach as to credibility," the panel noted. "Plaintiff's counsel was attempting to impeach testimony that supported defendant by cross-examining a defense witness, with a prior statement, which had tendency to make it less probable that the witness had a good view of the events. Furthermore, the comments made by plaintiff's counsel did not indicate a deliberate course of conduct aimed at preventing a fair and impartial trial, did not deflect the jury's attention from the issues involved, and did not have a controlling influence on the verdict."
Finally, the panel turned to the defendant's allegation that plaintiff's counsel referenced a cover up without a factual foundation and involved issues not relevant to the action.
"During opening statements plaintiff's counsel stated that 'You're also going to hear evidence of cover-up and the misrepresentations and the falsehoods directly from [the officer who struck the decedent],'" the panel explained.
However, "this statement was not improper," it found. "There was evidence introduced that the Detroit Police Department may have covered things up, plaintiff's witnesses and some defense witnesses testified contrary to [the officer]. Moreover, the comments made by plaintiff's counsel did not indicate a deliberate course of conduct aimed at preventing a fair and impartial trial, did not deflect the jury's attention from the issues involved, and did not have a controlling influence on the verdict."
Show Me The Money
Finally, the panel addressed the defendant's argument that the case evaluation sanctions award should be overturned because it is predicated upon duplicative attorney work at a rate which far exceeds that allowed under the rule.
The trial court awarded $946.65 in taxable costs and awarded plaintiff's attorneys $213,800 as follows:
* attorney Geoffrey Fieger $119,550 (199.25 hours x $600 per hour),
* attorney Marcia McClure $59,750 (239 x $250 per hour) and
* attorney Henry Langberg $34,500 (138 hours x $250 per hour).
"Defendant contends that it is not reasonable to charge defendant expenses associated with the presence of extra counsel at trial and during depositions," the panel explained.
However, "reasonable fees can include fees incurred through representation by multiple lawyers," it observed.
After a thorough examination of the record, "the trial court did not abuse its discretion in awarding attorney fees to Attorney McClure, Attorney Fieger, and Attorney Langberg," the panel found.
"Attorney Fieger testified at the motion hearing that if it were not for the time spent by co-counsel he would have been required to spend the extra hours on the case, which would have, obviously, been more costly for defendant," the panel noted.
Further, "Attorney McClure and Attorney Langberg represented plaintiff prior to Attorney Fieger's involvement, and therefore, conducted a great deal of the discovery," the panel explained. "Thus, their presence at trial and assistance in depositions was necessary to Attorney Fieger who joined the case just prior to case evaluation."
Based on the vast number of witnesses, the complexity of the case, and the fact that Fieger did not begin his representation until just before case evaluation "the trial court did not abuse its discretion in granting attorney fees to all three attorneys."
Finally, the panel found Fieger's hourly rate of $600 to be reasonable.
"In determining a reasonable hourly or daily rate, the trial court can take into consideration some of the following: (1) the professional standing and experience of the lawyer; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client," the panel explained.
Based on these factors and the circumstances surrounding the case, the panel found that the hourly rate requested by Fieger was not unreasonable.