I have been writing a fair amount lately regarding stare decisis and precedent. The subject came back to mind as I was recapping the various 2017 efforts at workers' compensation statutory reform in Florida.
House Bill (HB)7085 addressed several topics, including (at line 717) attorney fees. The reader can decide how to feel about the bill itself, and the various changes it would have made to Chapter 440, F.S. However, several provisions reminded me of some precedent of which discussion may be interesting.
HB 7085 would have created a new fee analysis (or at least a new name), the "departure fee," (Lines 832-835). This would have been an hourly fee, awarded in certain circumstances, departing from the statutory formula fee found in section 440.34(1)(lines 718-748). The bill set forth "factors" that the JCC would have had to "consider" when "departing from the amount set forth in subsection (1).
This is similar to the Florida process prior to 2003, but the "factors" in the Bill were different from the prior workers' compensation statutes and the Lee Engineering factors that preceded them. With the Castellanos decision, the Lee Engineering factors are under consideration again. The changes in HB 7085 arguably would have enhanced judicial discretion.
This is similar to the Florida process prior to 2003, but the "factors" in the Bill were different from the prior workers' compensation statutes and the Lee Engineering factors that preceded them. With the Castellanos decision, the Lee Engineering factors are under consideration again. The changes in HB 7085 arguably would have enhanced judicial discretion.
HB7085 referenced judicial discretion in section 440.34(5)(d)1. (lines 848-854):
Determine the number of attorney hours and make 849 specific detailed findings specifically allocating the attorney hours to each benefit claimed, which must account for hours relating to multiple benefits in a manner that, in the independent discretion of the judge of compensation claims, apportions such hours by percentage, in whole numbers, to each benefit claimed; (emphasis added).
HB7085 referenced judicial discretion in section 440.34(5)(d)2. (lines 855-858):
Specify the number of hours claimed by the claimant's attorney that, in the independent discretion of the judge of compensation claims, reasonably relate to benefits upon which the claimant did not prevail; and (emphasis added).
HB7085 referenced judicial discretion in section 440.34(5)(d)2. (lines 859-861):
Reduce the number of attorney hours if he or she determines, in her or his independent discretion, that the number of attorney hours are excessive. (emphasis added).
HB 7085 enumerated nine factors for consideration in determining a reasonable fee, but this discussion is focused on only 2 of those.
Section 440.34(5)(f)2. (lines 875-879):
The time and labor reasonably required, the novelty and difficulty of the questions involved, and the skill required to properly perform the legal services as established by evidence or as independently determined by the judge of compensation claims. (emphasis added).
Section 440.34(5)(f)9. (lines 892-893):
Whether the departure fee sought by the claimant's attorney shocks the conscience as excessive.
In subsection (g)(lines 894-899), the HB provided
a judge of compensation claims shall determine the hourly rate used to compute the departure fee awarded under this subsection, in $1 increments, which may not exceed $150 per hour. A judge of compensation claims is not limited to an hourly rate pled by a party. (emphasis added).
Thus, in several instances, HB7085 appeared to seek to empower judicial discretion. In some instances, the legislative language reminded me of court determinations. The "shocks the conscience" language (440.34(5)(f)9) seems perhaps related to Jackson v. Ryan's Family Steak House, 27 So.d 90 (Fla. 1st DCA 2009). There an expert testified that the reasonable fee for obtaining about $200 in medical mileage would be about $8,000. The Judge awarded about $4,000 instead, concluding that the $8,000 sought "would be unreasonably excessive to such an extent to shock the judicial conscience." The District Court affirmed with little explanation, but Judge Hawkes' concurring opinion provides a recap and criticism of various District Court attorney fee cases that decried Florida trial judge discretion.
The "not limited to an hourly rate pled" language (440.34(5)(g)) may relate to the Court's interpretations of section 440.34 in Morris v. Dollar Tree Store, 869 So.2d 704 (Fla. 1st DCA 2004). There, an expert testified that $200 per hour was the reasonable hourly rate. The only contradictory evidence established a "range" of other hourly rates deemed "reasonable." The Court essentially held that award of an hourly rate in that range was not supported by competent substantial evidence. That language from the Court was cited again in Marshall v. City of Miami, 920 So.2d 107 (Fla. 1st DCA 2006).
Thus, without explicitly stating, the District Court seemed to imply that a JCC was limited to one of the rates testified to by the "experts," but could not select some rate that was in between the two figures so stated. This seems curious to some. If you think $1.00 for a cheeseburger is "reasonable" and someone else thinks that $2.00 is "reasonable," the Court seems to say the correct answer must only be one of these amounts. But, some argue it is logical, on that record, that $1.50 for that cheeseburger is perhaps just as rational and competent a conclusion.
The various other Bill references to "discretion" may be harder to attribute to a particular case or interpretation. However, in a series of interpretations, the First District has criticized trial judges over the years for reliance upon "the JCC's subjective belief and personal experience." The Court has reversed on that basis, regarding reasonable time, Sanchez v. Woerner Management, 867 So.2d 1173 (Fla. 1st DCA 2004), the relationship of time to the benefits obtained, Feinberg v. Miami-Dade County, 788 So.2d 417 (Fla. 1st DCA 2001), and the customary hourly rate in a community, Smith v. U.S. Sugar Corp, 624 So.2d 315 (Fla. 1st DCA 1993). Subjective belief and personal experience cannot support an award of fees according to the First District Court. Hale v. Shear Express, 946 So.2d 94 (Fla 1st DCA 2006).
Thus, without explicitly stating, the District Court seemed to imply that a JCC was limited to one of the rates testified to by the "experts," but could not select some rate that was in between the two figures so stated. This seems curious to some. If you think $1.00 for a cheeseburger is "reasonable" and someone else thinks that $2.00 is "reasonable," the Court seems to say the correct answer must only be one of these amounts. But, some argue it is logical, on that record, that $1.50 for that cheeseburger is perhaps just as rational and competent a conclusion.
The various other Bill references to "discretion" may be harder to attribute to a particular case or interpretation. However, in a series of interpretations, the First District has criticized trial judges over the years for reliance upon "the JCC's subjective belief and personal experience." The Court has reversed on that basis, regarding reasonable time, Sanchez v. Woerner Management, 867 So.2d 1173 (Fla. 1st DCA 2004), the relationship of time to the benefits obtained, Feinberg v. Miami-Dade County, 788 So.2d 417 (Fla. 1st DCA 2001), and the customary hourly rate in a community, Smith v. U.S. Sugar Corp, 624 So.2d 315 (Fla. 1st DCA 1993). Subjective belief and personal experience cannot support an award of fees according to the First District Court. Hale v. Shear Express, 946 So.2d 94 (Fla 1st DCA 2006).
Judge Hawkes dissented in Hale. There, he suggested that effective cross-examination might lead a Judge to discount or even reject an expert's opinions, despite them being uncontradicted by other evidence. That dissent aptly reminds that Judges may reject the testimony of any witness found to lack credibility, inherently or through cross-examination.
There has been support for Florida judicial expertise and discretion though. In 1987, the Florida Supreme Court addressed the process and procedure for determining workers' compensation attorney fees in Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla. 1987). The Court noted that fee hearings "should no longer be necessary in every instance," and that a "deputy commissioner" (now JCC) could consider a "detailed affidavit of the claimant's attorney" and award a fee without "the testimony of an expert witness."
The Supreme Court explained that "in the ordinary case, deputy commissioners, by reason of their experience, are well qualified to determine the reasonableness of attorney's fees without the opinion of an expert." That conclusion, regarding the relevance and value of a JCC's experience in 1987 seems to some to be at odds with the decisions of the First District Court cited above. Sanchez, Feinberg, and Hale do not refer to or explain Crittendon. Though the Court in Smith cites Crittendon, it is not for that "experience" explanation or conclusion.
Some find it curious that the First District would be so critical of JCCs despite the Supreme Court's praise. Others wonder why those critical DCA decisions never explain the District Court's disagreement with Crittendon. Others contend that the distinction is obvious and therefore not worthy of District Court explanation; they argue that Crittendon merely stands for the proposition that expert testimony is not required to support a fee affidavit (by definition the affidavit is likewise "testimony"). However, the ongoing DCA criticism without explanation nonetheless remains curious to some.
Some find it curious that the First District would be so critical of JCCs despite the Supreme Court's praise. Others wonder why those critical DCA decisions never explain the District Court's disagreement with Crittendon. Others contend that the distinction is obvious and therefore not worthy of District Court explanation; they argue that Crittendon merely stands for the proposition that expert testimony is not required to support a fee affidavit (by definition the affidavit is likewise "testimony"). However, the ongoing DCA criticism without explanation nonetheless remains curious to some.
The District Court did return in 2009 towards Crittendon in Jackson v. Ryan's Family Steak House. The concurrence there states that "We cannot ignore, however, the reality that a JCC, an official charged with the exclusive statutory duty of approving all claimants' attorney's fees, has a well-founded understanding of the market value of fees in the community." That reliance in 2009 might be seen as indicating some District Court indulgence of judicial experience and expertise, a la Crittendon.
Of course, that decision interpreted a statute (2003) that capped fees at the percentage formula, but which the Supreme Court had concluded in 2008 must nonetheless be "reasonable." Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). But "reasonable," seemingly broad and unconstrained, nonetheless focused fee analysis back to the Lee Engineering "factors" of decades before. Lee Engineering v. Fellows, 209 So.2d 454 (Fla. 1968). Despite the "factor" analysis, however, Murray focused on the "reasonable" as an overriding concept, and the District Court's Jackson analysis may likewise be dependent upon the primacy of that single word. In that regard, the Supreme Court's stress on the word "reasonable" in Castellanos may be interesting as well.
The Jackson concurrence explained further that "where the evidence is patently exaggerated, illogical, or unconscionable, the JCC must not be bound by inelastic rules which command an unconscionable result not otherwise permitted by statute." However, the Jackson concurrence was authored by Judge Hawkes, who is no longer on the Court. Furthermore, the next most "Crittendonesque" District opinion is Judge Hawkes dissent in Hale. Some argue that neither case stands for a return to the Supreme Court's Crittendon view.
Of course, that decision interpreted a statute (2003) that capped fees at the percentage formula, but which the Supreme Court had concluded in 2008 must nonetheless be "reasonable." Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). But "reasonable," seemingly broad and unconstrained, nonetheless focused fee analysis back to the Lee Engineering "factors" of decades before. Lee Engineering v. Fellows, 209 So.2d 454 (Fla. 1968). Despite the "factor" analysis, however, Murray focused on the "reasonable" as an overriding concept, and the District Court's Jackson analysis may likewise be dependent upon the primacy of that single word. In that regard, the Supreme Court's stress on the word "reasonable" in Castellanos may be interesting as well.
The Jackson concurrence explained further that "where the evidence is patently exaggerated, illogical, or unconscionable, the JCC must not be bound by inelastic rules which command an unconscionable result not otherwise permitted by statute." However, the Jackson concurrence was authored by Judge Hawkes, who is no longer on the Court. Furthermore, the next most "Crittendonesque" District opinion is Judge Hawkes dissent in Hale. Some argue that neither case stands for a return to the Supreme Court's Crittendon view.
So, from a Supreme Court conclusion that evidenced faith and trust in Judges of Compensation Claims, through a series of First District cases that eschew and reject "subjective belief and personal experience" of trial Judges, the decisional law nonetheless returned in 2009 towards a District Court recognition more similar to the Supreme Court's Crittendon.
And then the 2017 legislative session raised the issue of workers' compensation attorney fees in HB7085. That bill repeatedly rejects the District Court perceptions and constructions, and the Bill's language would have empowered Judges of Compensation Claims to perform "independent" analysis of fees, and to exercise significant "discretion." This seems to some to be wholly consistent with the Supreme Court sentiment that our JCCs "are well qualified to determine the reasonableness of attorney's fees without the opinion of an expert."
But, the 2017 Session ended without agreement on workers' compensation reform. HB7085 failed to pass the Senate. It is not the law, but its language remains the subject of discussion. Only time will tell what perceptions and ideas drive that reform debate in 2018, if any.
And then the 2017 legislative session raised the issue of workers' compensation attorney fees in HB7085. That bill repeatedly rejects the District Court perceptions and constructions, and the Bill's language would have empowered Judges of Compensation Claims to perform "independent" analysis of fees, and to exercise significant "discretion." This seems to some to be wholly consistent with the Supreme Court sentiment that our JCCs "are well qualified to determine the reasonableness of attorney's fees without the opinion of an expert."
But, the 2017 Session ended without agreement on workers' compensation reform. HB7085 failed to pass the Senate. It is not the law, but its language remains the subject of discussion. Only time will tell what perceptions and ideas drive that reform debate in 2018, if any.
