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The trial judge’s award of attorney’s fees could not be based on the judge’s personal policy or on a desire to deter fee shifting requests

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January 18, 2013 at 5:19 pm


Law Lessons from IN THE MATTER OF THE ESTATE OF HALINA KRZEMINSKI, App. Div., A-3182-10T1, December 19, 2012:

A trial judge’s decision to award attorneys’ fees is reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). A reviewing court “will disturb a trial court’s award of counsel fees ‘only on the rarest of occasions, and then only because of a clear abuse of discretion.’” Litton Indus. v. IMO Indus., 200 N.J. 372, 386 (2009) (quoting Packard, supra, 167 N.J. at 444).

Rule 4:42-9(a)(3) provides, in pertinent part:

In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

“Except in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute.” In re Reisdorf, 80 N.J. 319, 326 (1979).

In calculating an award of attorney’s fees, the court must determine the “lodestar,” that is, “the number of hours reasonably expended multiplied by a reasonable hourly rate.” Rendine, supra, 141 N.J. at 334-35.

Generally, a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community. Thus, the court should assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.

[Id. at 337 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).]

The hourly rate must be “fair, realistic, and accurate.” Ibid.

After fixing a reasonable hourly rate, the trial court must determine whether “the specific circumstances incidental to a counsel-fee application demonstrate that the hours expended, taking into account the damages prospectively recoverable, the interests to be vindicated, and the underlying statutory objectives, exceed those that competent counsel reasonably would have expended to achieve a comparable result.” Id. at 336. On this basis, a trial court may delete excessive hours from its calculation. Ibid. A court is then free to “reduce the lodestar fee if the level of success achieved in the litigation is limited as compared to the relief sought.” Ibid. A successful fee application, however, does not require “proportionality between the damages recovered and the attorney-fee award.” Furst v. Einstein Moomjy, Inc. 182 N.J. 1, 23 (2004).

In In re Probate of the Alleged Will and Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010), the court held that the trial judge’s award of attorney’s fees could not be based on the judge’s personal policy or on a desire to deter fee shifting requests.



NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


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NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Westfield, Union County, New Jersey.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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