Polston v. Lewis -- Both Sides Now!

Depending on how you look at it, the Florida Supreme Court today either approved the routine application of an alternative fee recovery clause in a fee agreement that uses an hourly rate as the other basis for payment, or it disregarded decades of precedent to misapply and grossly distort existing law.

Here's a taste of Justice Lewis' blistering dissent:

Today the majority surprisingly and, in my view, incorrectly endorses a universal implementation of alternative attorney fee recovery clauses with an astonishing disregard for its simultaneous evisceration of the well-established distinction between statutorily authorized attorney fee awards and attorney fees assessed as damages under the concept of indemnity. The majority additionally disregards decades of controlling precedent simply because it is unfavorable to its holding and approves awards of attorney fees not actually incurred, an award of money readily and clearly in violation of due process when assessed as indemnification. When attorney fees are improperly awarded, a “species of social malpractice [results] that undermines the confidence of the public in the bench and bar. . . . [I]t brings the court into disrepute and destroys its power to perform adequately the function of its creation.” Baruch v. Giblin, 164 So. 831, 833 (Fla. 1935). Unlike the majority, I refuse to embrace contractual convenience over our inexorable constitutional obligation to ensure no person is deprived of life, liberty, or property without due process of law. Therefore, for the reasons that follow, I dissent.

That's ok, judge, no one thought you were heading toward a concurrence!