Transcript

Jim Mueller: The biggest thing that you’ve got to show is that you have either statutory or contractual authority in order to be able to have the fees be awarded to you. And then you got to show your evidence and support the fees with evidence.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Jim Mueller to the Texas Family Law Insiders podcast. Jim is the owner and managing partner at Verner Brumley Mueller Parker, PC with offices in Dallas and McKinney, Texas. He is board certified in family law, is a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers. His practice focuses primarily on complex divorce matters, high asset property division, custody battles, and marital property agreements.

Jim is on the executive committees of the Texas Family Law Council, the Board for the Texas Academy of Family Law Specialists and executive leadership for the Texas American Matrimonial Lawyers Chapter and the National American Academy of Matrimonial Lawyers. He has chaired numerous CLEs across the country and regularly speaks to family lawyers around the world. So thank you so much for joining us today.

Jim: No, thank you for having me. I’m looking forward to it. I know we were trying to get this done for a couple of months. So I’m really happy to actually be here. It’s awesome.

Holly: Well, and I know you’re involved in everything family law that one could possibly be involved in. So I just can’t even imagine how busy your schedule is plus practicing on top of that. So you know, thanks for taking the time. And why don’t you start and just tell us a little bit about yourself.

Jim: Of course. Yeah. Married. Two kiddos, 10 and 12 years old. Five and a half month old dog that’s weighing in at just 72 pounds as of yesterday. So he’s gonna be a big guy when he gets older. I grew up in Wildwood, Missouri, came down, went to Rhodes College in Memphis, kept coming south, went to SMU for law school, and worked all the way through law school and then decided I was going to practice law.

So I went into that. Been over here, took over Verner Brumley back 12 years ago. So it’s been a fun little ride. We had about four lawyers then and 16 lawyers now. So a little crazy. I had a lot more hair back with four lawyers.

Holly: So how would you describe your current practice?

Jim: It’s kind of all over in the sense of, we do a lot of complex divorces, a lot of high net worth divorces. We do a lot of litigation. I’ve got offices in Dallas, McKinney, Rockwall, I should say Heath now and down in Bosque County as well, in Meridian. And I have done practices, you know, obviously all over the metroplex. But then I also do a whole lot of different rural practice.

And I love traveling outside, I love going to South Texas, East Texas, West Texas, it’s a lot of fun. So it keeps it very interesting. And lets me travel all the time. So it’s a lot. And I think it’s nice to be able to, you know, as much as you go outside of the Dallas, and you’ll hear how often it’s Mr. Mueller from Dallas here. I can only apologize for living here now. But I didn’t grow up in Dallas. So I’ve been wearing boots since I was a kid.

Holly: So I wanted to have you on today to talk about obtaining attorneys fees in family law cases. I know you spoke on this topic back at Advanced in 2023. And I think, you know, so often, in my own practice, I think to myself, why am I even bothering with all this work to put on evidence of attorneys fees, because nobody ever gets it. Nobody ever awards it. Has that been your experience? Or do you think you know, there are plenty of judges out there that will award attorneys fees, so it’s well worth our time putting on that evidence?

Jim: Interesting. I would say that almost the majority of times, you’re thinking to yourself that you’re not going to get awarded attorneys fees. Especially if you kind of have mutually contested issues. One party’s not being terribly egregious. I think where you really get it are those cases where you have the fraud, the waste claims and you know, an egregious act or somebody who’s really a bad actor.

Then I think the judges want to send the message sometimes and they will prove up and actually award attorneys fees. It’s one of the ways that they can do it, you know, without just coming out and sanctioning somebody. They can get their point across to get them to start behaving. And it’s true. In a lot of the cases, what we find is I’ll reserve one minute for attorneys fees.

And you know, when that happens, every now and then you’ll have a judge that says, well, you never got to your attorneys fees. I wish you had. Or, as you do the appellate law, you know, this too. Sometimes, the judge will go on sua sponte awarding attorneys fees without any evidence of them and then that can cause an issue later on.

But I’m finding more and more that judges as they sit I think the longer they sit on the bench, they start to realize that’s my tool to be able to kind of control some of the clients. So I do think a lot of times if it truly is the even fight that you’re going to see when you’re down in court, probably not going to get them. But that being said, I know, it’s setting that expectation for the client, I think is probably the most important thing to do up front.

Holly: And I think the law is really specific now about what you have to establish to be entitled to attorneys fees, and to get those awarded. I know in my practice, I see lawyers all the time, who don’t come anywhere close to meeting that standard when they’re putting on their evidence. So hopefully, today, we can kind of lay it out there for people and give them the tools they need to actually be able to recover their attorneys fees, should a judge be in the mood that particular day.

Jim: Exactly. Give them the opportunity to give them to you.

Holly: Yes. So let’s start with the requirements for an award of attorneys fees in family law cases. What do we have to have?

Jim: I mean, the biggest thing that you’ve got to show is that you have either statutory or contractual authority in order to be able to have the fees be awarded to you. And then you got to show your evidence and support the fees with evidence. I think that’s one of the biggest things that a lot of attorneys don’t understand is, you have to put on evidence of it.

And so a lot of times, as we were just talking about, it gets overlooked, it’s at the very end, they gloss over it, and they don’t put in all the specific things you need. But if you look at the code, and you look through the different, you know, if you’re doing a divorce, you’re going to look at chapter six. If you’re looking at a SAPCR, you’re going to be looking back up in 105 to 109. Maybe 156 if you’re looking at a modification.

Your enforcements, you have other different kinds of statutories. I think that’s back in depending on whether you’re looking at the property and whatnot, you might have a chapter nine, or you might end up over in like a 157 or so. So for each one that you’re looking at, depending on the type of case there is statutory authority for you to be able to have those fees be awarded to you.

Holly: So in every family law case, is there going to be some statutory authority for granting fees?

Jim: Typically, yes, I think you’re gonna be able to find it in almost every single one. And I think what happens is, we talk about this, too, is when you’re requesting attorneys fees, usually we try to get you know, it’s interesting, it’s almost the opposite of what we talk about when you’re drafting.

We always talk about drafting with specificity, drafting in such a way that it’s enforceable by contempt, etc. When you’re initially pleading for these attorneys fees. I actually tell people, and I think I said it in the speech before was request attorneys fees very general. Be very careful about being very specific, because if you’re specifically pleading just one statute, you’re going to be tied to only that statute.

And sometimes you might have different authorities that you could fall under. And if you plead it generally, then the judge has the ability to do that. So I think a lot of times, that’s what you’re looking at, is to say, Judge, we have many options for you to be able to award me fees that will not be overturned on appeal.

Holly: So if you put in your whatever the first pleading is, your petition, your counter petition, whatever your answer, this generic request for fees, do you then need to have it in each and every motion that you may be having a hearing for? So if we’re going to a hearing on temp orders, and we think attorneys fees should be awarded at that time, for whatever reason, is it enough to fall back on that original pleading? Or do we need to also have it in that specific motion?

Jim: I think it depends on how specific you got in the original pleadings. So if you file your original Petition for Divorce, that’s extremely general. But also I think you have to request interim. So let’s say my specific practice would be if you’re going to file a motion for temporary orders include your request for interim fees within that motion for temporary orders. Because I have been able to successfully argue when the other side’s asking for fees, they’ll say, well, I pled it my original petition.

And I said, you’re right judge, but it’s generally asked for attorneys fees that be awarded at the end of the day at final trial. And it even references on appeal, an appeal to the Supreme Court, etc. And it no way asked for those to be awarded at this particular motion before the court. So I would have a practice of saying if you’re going to ask for fees at the hearing, put it in your motion.

Holly: And I would say even though, you know our general pleading can be pretty generic about attorneys fees, and we don’t need to specify the statute or anything at that time. I think it’s really important that attorneys know what their basis is when they are actually going to be arguing for it in court. I know what might be sufficient evidence for one of those grounds may not be sufficient to get you there on another.

Jim: And that’s exactly it. I think that helps is your pleading is going to be general and then when you’re in court I always say, bring a brief. Have those in specific statutes or contractual authority that you’re going to be referring back to right in front of the judge at that time. But you don’t need to necessarily, it’s notice pleading. Obviously, you’ll be asking for attorneys fees, when you get to court know exactly what statute or what contract you’re going to be falling under.

Holly: So we’ve got our pleadings that ask for fees. Now we need to get our evidence together to actually have a chance to get them and keep them on an appellate level. So talk a little bit about that. What evidence do we need?

Jim: Yeah, and I really should go back too and say, it’s funny, because a lot of people use just the forms, and they go through these things. And they, when they’re hitting a general denial on an answer that has a request for fees or filing a petition that has a request for fees in it. I always say careful about when you just used a form, think about who you represent.

It’s extremely offensive in many instances, if the parties come in saying we’re going to get this amicably, I really don’t want to fight. And then you have a stay at home mom who hasn’t worked in 25 years, and the guy who’s making a million dollars a year has asked for her to pay attorneys fees. It very much puts them immediately on a defensive shock awe and not starting off on the right place.

And so you’re saying is, think about whether or not you do represent the moneyed spouse or the non moneyed spouse when you’re going to be pleading it. But when you finally get to that point where you got to put on your evidence, my big thing is to show, put in your fee agreement that you have. And if people don’t have a fee agreement, they need to get an agreement. Always have that put in place.

And then I say you know, bring a copy of all your bills. I will have redacted bills. And then I bring in a manila folder as well, a copy of unredacted bills, just in case for in camera review. Because I think sometimes we’ve all seen the bills that everything is redacted. You can’t tell at all, but you’re entitled to know some of that, obviously, not the privileged information.

But if you’re going to be cross examining or looking through the bills, on the other side, you’re entitled to know some of the information of what exactly was being billed. And then I always say, do a summary of attorneys fees supported by the bills behind them. So much easier for the judge to be able to see and then include on there anticipated fees or estimated fees.

Because unless you’re clairvoyant, nobody knows how long you’re going to be sitting in that courtroom. We’ve certainly all been there when the court goes longer or shorter than what we were expecting. But you want to have an estimate in there. So that you can tell the court, this is what we’ve already incurred, Your Honor.

We included this amount for today, it’s an estimated time, here we are, we went over, I’d add this much at this hourly rate, etc. And I kind of I think I have. So I always laugh too. If somebody’s not a member of the family law section, just join, just to get the toolkit. I joke all the time, it’s like you and I’ve been doing this a while.

And yet we sit here, I always have this out with me. And I’ve got my little attorneys fees, and it’s got a little prove up summary. Just walk through it. It kind of tells you exactly what you need to go through, and what you need to show and you know, the different factors that you need to go through.

Holly: So in talking about redacted and unredacted bills. So, way back, probably not that long ago, we all used to have very heavily redacted bills. And we would put a lot of information into our billing because you know, our clients want to know what we’re doing all of that. So my understanding is that now under post Rohrmoos, which we’re going to maybe talk a little bit more a little bit, that really they don’t, we’re not really supposed to be redacting our bill.

So, the way I try and do bills in such a way that I’m not putting any privileged information in there, but it tells what is happening. So, you know, if I sent correspondence to the client about preparing for upcoming hearing. Well, that’s not any. There is no interesting information in there from the standpoint of privilege, but there’s certainly, we know what the subject matter of this particular email was about. What are your thoughts on that?

Jim: I agree. I think general billing is a great way to do it. You do it on the front end saves you a lot of work on the back end. I do exactly what you do, Holly, which is the you know, the client kind of understands it’s email with the client. It is phone call with so and so. And that obviously, with so and so might be that little privileged information, but make your paralegals’ jobs a lot easier when they’re going through and redacting by not including so much privilege and information.

It’s very different than back in civil world where a lot of times it seems like back in the day we’d be putting these just paragraphs and then it would be .25. But that’s, I’m with you. I think the idea of a general billing is so much easier. And then that’s another thing you tell the client when you’re meeting with them of how your bills look, so that they understand that.

Holly: But I do think there has to be enough detail in there. I’ve had hearings, where on appeal, I’ve dealt with somebody’s bills where they were like, email to client, email to client, phone call to client ,phone call to opposing counsel. And you can’t tell any more detail from that from the bills. And I don’t think that meets the requirements. So I think you have to put a little bit more than that. Say for hearing preparation or some sort of detail, so that we just know more than okay, you had 500 emails with your client? How do we know that that was?

Jim: Applicable to this hearing. Or applicable do to this motion or that enforcement action. And so I agree. Because that way, if you can use your bills to show the reasonableness and necessity of it, that’s like, your first stepping stone just to get there. So I agree.

And I think so much of that is just saying, you can show, if we’re talking about what Rohrmoos is doing, I’m probably butchering that pronunciation, but you know, it’s basically saying present what you did, who performed them, when, the reasonable amount of time required in order to do it, and the hourly rate. When you can show all that information in these easy billing statements, you’ve just gotten over that hurdle. I think it’s great to be able to do.

Holly: So another thing you mentioned was including a summary of attorneys fees. What all do you include in that summary? Is it just that I billed a total of $35,000 on this case?

Jim: So we usually will show, we’ll break it down by month, usually. And it’ll show in this was the month of what we had, we have a certain amount of attorneys fees and cost, and then we have other fees and costs. And we’ll total it up. Just so that they can judge will see month by month. And you know, the irony is when you start to look at that, you can tell the months when you had hearings.

You can tell the months when you didn’t have hearings, just based on those bills. But I think showing that overall is to be like judge, because it is sometimes I mean, I say this all the time, nobody but my wife says I’m cheap. And so it’s like just judge, sometimes our bills are high, but we perform a very valuable service that we should get paid for.

And although this might sound like an astronomical amount of money, can I tell you, we’ve been doing this case for two years and three months at this point. When you look at how many hearings when we have, when you see everything that’s over month to month, it becomes a little bit more palatable for them to see.

Holly: So talk a little bit about the attorney as an expert witness. What we need to do to disclose ourselves. What documents need to produce in that regard?

Jim: Yeah, and I think that’s really important to go back and make sure that you are designating yourself as an expert to testify as to the attorneys fees. You’re going to testify about your knowledge and your skills and your novelty that you actually have and what you’re going to show. And it happens a lot.

Clients change lawyers. When that happens, a lot of attorneys will forget to go back and designate themselves as an expert, and re designate themselves. When that happens, sometimes you’ll see they get the final trial and they don’t have properly the business records affidavit from the prior lawyer to prove up their fees in addition to yours.

And so you want to kind of keep top of mind as you’re doing expert disclosures, your initial disclosures and all pre trial disclosure, list yourself as an expert to testify. Because that’s what’s going to you know, you will be the expert testifying. And it’s kind of a unique situation where as the lawyer, you’re going to be testifying as an expert in that case.

Holly: A lot of our hearings, especially in Collin County, we have a very limited amount of time that we are given to put our evidence and putting on attorneys fees evidence during that amount of time might be very difficult to do. Talk a little bit about using an affidavit for this piece, for getting attorneys fees. Can you do it? If so, what do you do?

Jim: Yeah, you certainly can. And I think it’s, especially as you know, up in Collin County, how often we are using summaries and affidavits and all that. A 20 minute time limit. It goes by extremely fast. I had used a sample affidavit. I think it was from Robert Epstein even that was attached to my paper from Advanced and it really goes through the exact same thing that you’d be doing if you were testifying.

You’d be covering those Andersen factors you know, talking about the time that was spent on it, the labor that was required. I would go into the novelty of it so that they understand it, and the skills of what you have. It’s the time at least in an affidavit, it is truly humble bragging as you’re kind of going through it all. But that’s exactly why you can justify the rates that we are and the fees that you have.

And the idea is you took this case on which prevented you from another one. I think you can talk about unique circumstances in a case too. All of these things to show, you know why the fees are what they are. And you can go through the different hearings. So in that affidavit, I will go through all of those things and prove that up.

And then not just include your time, but just like you would with everything else, you can talk about your paralegals. You can go through exactly what their skills are their hourly rate, the work that they did, and talk about the reasonableness, the necessariness of all of these fees. The fees were reasonable, and the fees were necessary.

That’s kind of the at the end of the day, what we have to make sure that we’re showing. And an affidavit is a wonderful way to quickly get in all of that. I mean, Holly, you kind of know this, too. How often do you see it as you’re reviewing some, they go to put that affidavit in, the other side, it’s almost, they’re embarrassed to say anything or they’re embarrassed to object. They just let it in right away.

And then a lot of times, do you have any cross examination? No. I warn people about that. Careful, if you don’t, if somebody’s filing an affidavit against you, take a look at that, so that you can file a contradicting affidavit to it as well. You know, you can go back and forth that way. But I think, you know, without it, it’s going to be taken true as a matter of law. And you can run into some issues there.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by The Draper Law Firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So normally, affidavits are not admissible in courts. So is there some special rule that makes it admissible for purposes of attorneys fees?

Jim: I knew you were gonna ask me exactly the statute that was going to come with it. And I’ll look at that one to see. But yes, it allows us to get that affidavit in there as you’re going to be proving that up as an affidavit of fees. And so there is specific statutory authority that will actually allow for that.

Holly: Is there any requirement that you need to produce that in advance?

Jim: So I do, just because I think it’s better to have that kind of a practice, where you produce it to the other side, and they have it, they get enough notice for it. And sometimes I, we just had one of the cases I believe with Judge Ten Eyck asking for submission of attorneys fees via affidavit by a certain date. And then a date to have a controverting affidavit if you want to put that in there. So that’s kind of what I like to show all the time. If you’re going to do the affidavit way.

Holly: So moving on to actually proving up attorneys fees when you are in courts. We’ve mentioned a little bit about Rohrmoos. I’m sure I’m butchering that name, too. But what, from an evidentiary standpoint, what does Rohrmoos require us to prove in court?

Jim: So at a minimum, it’s got to be the evidence of the services performed, who performed them, when they were performed, and the reasonable amount of time to perform those services and the reasonable hourly rate that was done for each person performing the services. Kind of what you got to show. And I was, I think it’s chapter 19 on affidavits. I was trying to remember that. I think it’s TRCP 19. I’ll take a look at that.

Holly: I think I have it written down as 19.001. Does that sound right?

Jim: Beautiful. That sounds right. There you go. I couldn’t remember where in 19, but like, it’s somewhere in there.

Holly: So if attorneys haven’t read that case, it’d probably be a really good idea to go read Rohrmoos. It’s, unless there’s been something I’m not aware of, the latest in what’s required for attorneys fees. You’d mentioned earlier also about the Arthur Andersen factors. What are those and how do those tie in?

Jim: That’s kind of where you go into a little bit more detail about why your fees are what they are. And so you get into the whole idea of what a court can consider in the sense of the time, the labor, the novelty, the difficulty of the case, the preclusion from other work. You can talk about the results that you actually obtained.

You can talk about time limitations. You can talk about the professional relationship with the client. You go into all of your experience, your reputation, your ability, you know, you go into all of those different factors that the court can take into consideration. And I think it’s important to go through it all and really to talk about it.

And I kind of say, as I was sitting here earlier with the toolkit you’re going, it lists so much of this stuff that it’s you know, of the Andersen factors right in there, that it allows you if you’re testifying on the fly, to just walk through it. And never be ashamed of it. Whatever. You and I have been doing it a while, I have no problem having that toolkit in front of me.

Holly: Well and if you’re in the practice of using affidavits for it, it’s probably significantly reduces the amount of repetition you need, because you can use that same blurb, unless you want to do something new. You know, the same blurb about yourself about the people in your team and all of that over and over again. Yes,

Jim: Yes. And here, I always think of too, is to talk about the fact that the other side, more than likely, if they’re requesting fees or saying that their fees are reasonable and necessary, well use that. Judge, they said that their fees were reasonable and necessary. Here we are at final trial, my summary judgment was granted. This is what we got at temporary orders. My fees are less than their fees.

So the fact that they’re here arguing over the bad results of the temporary order hearing, they lost a summary judgment and more fees, they claim are reasonable and necessary, I think it inherently argues that ours are. And I’m not ashamed, I might be a bit of a smartass in and outside of a courtroom. I have no problem saying is my fees might have been lower Your Honor if I had a different opposing counsel.

But this is what was done to me, this is what was done to my client, here’s what we were drug through. We have a duty to reply, we have a duty to go through and answer. And we all know that. It’s not a secret. There are some lawyers that you’ll see on the other side, and you feel very bad for your client, when you say your fees are going to be higher than you would have liked.

Holly: So what do you say when the fees on the other side are significantly lower than yours?

Jim: And that’s kind of where you’d have to go through that humble bragging and what you did. It’s one of those you got to know if you’re going to be putting fees, and there’s is so much higher. Think about it. And I think about sometimes. Sometimes I’ll tell my client, no, we’re not asking for fees. Because we are so much higher. Because I do a rural practice, you also have to consider that too, is what’s reasonable and necessary within that area.

So you have to give your experience of practicing down there in Bosque County, or Tyler or in Abilene, Midland County, all these different things, you have to take that into consideration when you’re doing these, when you’re charging and when you’re asking for fees. So that’s some of them that said, you know, I do argue a little bit when they say, depending on who I represent, I guess, when they talk about equalizing attorneys fees, you know, to me, there’s a reason that I charge a very different rate than a second year lawyer.

So I think you got to point out those differences that if I’m getting paid this, you don’t just turn around and pay the other side, Your Honor. We work very hard to get board certified, we work very hard to get to where we are, that is an extra notch. And there is that level of experience and reputation and ability that differentiates the two. And I think that’s a time when proving up attorneys fees, you can’t be really shy about it.

Holly: Right. And just because the person on the other side chose to hire somebody who has significantly less experience, significantly lower rates, that was their choice to do.

Jim: And usually if you’re proving up fees, you think you’re gonna get fees, that usually means you quote unquote, are expecting a better outcome from that hearing. And that’s why you kind of say is, I mean, you’re right, I think this hearing might have gone differently, had they hired somebody else. It is what it is.

Holly: So a lot of times we have a hearing that happens during the middle of a case for temp orders, motion to compel whatever it may be. And a judge is going to say I’m reserving fees for final trial. Is there anything specific we should do in that situation? Should we be getting record from that hearing so we can put it in at final trial? What do we need to think about?

Jim: Yeah, I think that’s exactly it. I mean, it is a way to kick the can down the road, truly, of where they’re going to say I’ll reserve it. I think you then remind the court, that you had this many interim hearings, you had this stuff going on judge and at the time, those fees were reserved for final trial. That’s why we’re here asking you to consider all of these different motions.

So really, with the evidence that you’d be putting forward before the court at a final trial, that would include all those other motions that you had, when fees were not awarded. Say judge, it’s not that they were denied, it’s that they were reserved. Therefore, this is the time and I’m asking you to please consider it. I

Holly: And I think it’s important for attorneys to remember if you put on that evidence at that temporary orders hearing and the judge reserved it for trial or whatever the hearing was, you better put it on again at final trial. Because you cannot consider that evidence and it’s not part of your record unless you make it part of your record.

Jim: Exactly. And that says as you’re doing your appellate work, reviewing the record, that’s the problem. There’s so much of it’s just left out of the actual record that you’re reviewing at final trial.

Holly: And a lot of judges will say, you know, I remember this. I don’t need you to put that on. Good for you, Your Honor, but the court of appeals does.

Jim: Yes. And that’s where you just nicely, I understand judge, you remember it very well, I just need it for the record. And you can tune out since you’ve probably already heard this, and you do remember it judge. It’s a nice way to say, I still have to do this. Put it in the record.

Holly: So, kind of backtracking from final trial a little bit and talking about interim attorneys fees. Generally, these are something we talk most often about in a divorce context. Tell us what’s different when we’re looking at interim fees, then final trial? And what are some things people should keep in mind?

Jim: Yep, I think if you’re looking at it typically, like you said, in a divorce scenario, you’re going to have the family code. You look at 6.5024, and it will give you exactly where you need to go for interim attorneys fees. The key as you’re doing interim fees, is you need to show that it’s got to come from community funds can’t come from separate funds, and that the judge has the ability to do so.

It’s actually for preservation of property and the protection of the parties, and again, as reasonable, necessary and equitable. And so what you have to show is interesting a little bit, because you’re going to be showing interim fees that haven’t yet been incurred. And a lot of times I tell people to provide the court with an estimate of actions that need to be taken in your case, and an estimate of the costs of what each one’s going to take.

And then this is always one great one, is said is, I understand that you need fees. You know, I’ve had judges over the years, you know, I get that. But what do we need to show? You never gave me a source of the funds. Where am I supposed to get it from? So I think that’s a big idea to be able to show is go through again, and say what source do you have? Is there an account? Is there an account that they can be ordered to take a loan out of? A 401k loan even. Is there an asset that can be sold and then divided accordingly?

So give that court the ability to say, I’m asking for interim fees. Here’s how much, here’s why I’m asking for those fees and the services that I’m going to need them for. And here’s where you can get them. Because the court is going to have to look at what’s the ability of the other party to pay.

Holly: Right. So if somebody, let’s say there’s either a prenup or for whatever reason, the estate is separate. And I’ve seen this where let’s say husband has a large separate estate for whatever reason, wife doesn’t. She wants interim fees. Is there any hope for her?

Jim: Not if you’re looking at separate property. That’s the hard part. And if you’re going into a SAPCR you can do it differently. You can look under Chapter 105, if you actually have a SAPCR within it, and you’re going to do it that way, because then the court can award it for the safety and welfare of the children. So it gets us to be a little bit different there. But the court in a SAPCR has to have a finding, or the award of attorneys fees is improper. So it’s obviously a little bit more difficult, because you’ve got to show it’s for the safety and the welfare of the children at the time that you’re requesting.

So it’s not sometime in the future. So it’s a little bit bigger of a hurdle to do. And, you know, I think there’s some case law out there that will show that when you’re doing that you truly it’s not being done. And the court cannot do it to just level the playing field between the parties. And I think that’s what we run into, the hardest situation.

Some, when you’re not in a divorce scenario, when you’re in a modification, and you do sometimes have parties that have significantly different resources. Then I think you got to dangle that carrot for the court to say Judge, I’m asking you to award these for the safety and welfare of the kids.

Holly: Right. And I think, I did an appeal on this issue. And safety and welfare of the children is not an easy burden to meet. And just saying that, you know, he’s a bad guy. And if I can’t afford a lawyer, then it’s going to be a bad result for my kids in the end, which is essentially the argument I think a lot of people make. That is not enough. You have to show like a true danger to the kids that’s going on right then and there that you need fees to cover.

Jim: Yes. And I agree. I think it’s a much more difficult burden to overcome in the show. And I think like you said, it’s at the time of the request. It’s not like what’s going to happen in the future. That is an interesting and hard, difficult burden to meet.

Holly: So one last topic I wanted to kind of touch on is defending against a request for attorneys fees. So give us some tips about when we should object and what we should do when we are trying to fight against it.

Jim: Yeah, I think one of the biggest things I had, I’ll joke, I’ll give a shout out to Beth Maultsby. When I was a baby lawyer, every time I’d come in for a question, well, Jim, what do the pleadings say? I’m like, ah. You and I were joking about IT. You call it and they’re like, have you turned it off and on again? That’s the first thing they say.

But it truly is the idea of go back and look at the pleadings. What do the pleading say? Did they properly plead for it? Did they disclose themselves properly, go back and take a look at it. And I think you can get into a whole lot as you’re defending or attacking, and objecting to it as you’re saying is, what actions were done, you know, how many motions to compel did you have to come down on? Going through, did they produce all of their bills?

Go through all that stuff. I think you can ask those questions. It is sometimes difficult, because you’ve got friends on the other side, you’ve got very well respected lawyers on the other side. And I think a lot of people get intimidated. But like we were talking about earlier, point out some of those unnecessary hearings that we had.

Point out that you had to fight this much on getting the credit card statements from the other side. Judge, we had to come down here this many times. All of these things is what you go through. I tell them all the time, what delays were there, discovery issues, losing every issue. Bring it up, don’t be abashed is what I say all the time.

Holly: I think it’s very common, when it’s the end of the hearing, people are out of time, the attorney on the other side gets up and runs through their little 30 second spiel about why they should get fees. It’s very common for attorneys to just say they have no questions.

Jim: I think it happens more often than not.

Holly: I would agree. And I think you should know what you have to prove and establish that they didn’t do it.

Jim: I agree. And that’s exactly if you know what you’ve got to do on the front end, then you really know how to defend against them. And what they didn’t show. And sometimes, that’s exactly it. And if you’ve got a case in chief, think of it this way too, let the other side might not ask questions right then and there.

But maybe don’t ask, if they say do you have any questions, say, Judge, I’ll reserve it for my case in chief. Let them rest, then get up and do a directed verdict at least as it related to their prove up of attorneys fees, and what they missed. And they failed the show. And then you can do a cross if needed on top of that.

Holly: If only the judges would listen.

Jim: But you know what, that is a pipeline of work for you, Holly. Thankfully, and I get it. We all prove we’re human every day. I make more mistakes. And I tell a lot of my associates half the reason why I’m okay at what I do is because I’ve screwed up so much that I just learned what not to do. So that is the whole idea of you know, you’re right. It’s it’s learn from it move on. But yeah, hopefully more judges will listen to the CLEs.

Holly: So one more thing, I said this was the last thing earlier, but there actually is one more thing. Contractual attorneys fees. The other way people can get them, aside from statutory fees. Tell us about what contractual attorneys fees are, how one might acquire such a contract and how you would actually get them.

Jim: And I think a lot of what you’ve got is if you’re looking at decrees, you can put in there certain enforceable provisions that will have in an agreed divorce decree. If it’s an agreed divorce decree that shows that the parties have a contractual provision in there for attorneys fees in the future, it’s enforceable. A lot of times we’ll see them if you’re going to put them in prenups. You know, we’ll have them in there. We’ll have them.

I’ve seen them in a decree where this happens more, you know, in the event that modification is filed, XYZ has to be paid. I years ago research one where it was in the event a modification is filed this one party had to pay 100% of all attorneys fees. And that’s an enforceable contractual provision. Didn’t even matter who filed it. It’s kind of crazy to see.

Holly: Someone agreed to that?

Jim: I did ask who cheated, but you know, it’s kind of one of those.

Holly: You probably did not have to ask.

Jim: Yeah, exactly. You’re going okay. But putting those provisions in there. I think to always take a look. Do we have an ability to go get fees? Do we have an ability under here to pay them? And you had brought up earlier a lot of times prenups. Prenups will have some provisions in there that will stay. If anybody requests the court to do something in contradiction to the terms of a premarital agreement, it could void the payments under there.

I warn people all the time, here they went and filed a general denial form. They didn’t remove their request for fees and the attorneys fees provision in the prenup says neither side will request attorneys fees of the other. I’ve argued before they shouldn’t get paid under the prenup at all.

Holly: Were you successful?

Jim: Yeah. If you get a very technical, because it’s like judge, here we are, we’re before you now. They shouldn’t get the fee. It’s a breach of contract.

Holly: So we’re just about out of time. But one thing I like to ask everyone who comes on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Jim: That’s appropriate for the podcast? What I would say?

Holly: Everything is appropriate for this podcast. I’m really curious about the inappropriate advice.

Jim: Well I’d say, turn and run. But no, but for those young family lawyers that are going to continue it, I would say, get to know every other lawyer as much as possible. Because truly, the more you can get along with your colleagues and your friends, and all that, it truly makes it, your practice will last so much longer, your career will last longer, the cases will be so much better.

You know, it is although our clients don’t always understand that when the lawyers get along, it’s great. And so that’s kind of what I say to young lawyers is get out there, get involved so that you got some skin in the game, you’ve got some friends, and you can all survive it together. And then ask questions.

Find some good mentors and ask questions. I don’t know how often, I’m sitting here picking up the phone calling people just ask stuff. So I tell them all the time. Don’t ever be afraid to ask a question. There really, truly is no dumb question. And I said before, half of the reason I know these answers, I’ve screwed it up. I’ve come across it. It’s like you said, when you start doing appellate work, you started learning, you see so much other stuff. It’s like, wow.

And I remember when I took the board exam a long time ago, I joked and I said, there’s a lot of good stuff here in this family code. We should really read this whole thing. And then as you’re studying for that exam, you realize, oh, my god, boy, remember that case? I actually screwed that up. But we got lucky. You know, this didn’t happen. It’s like, the smartest you’ll ever be in the most scared you’ll ever be.

Holly: Yes, I agree. 100%. So where can our listeners go if they want to learn more about you?

Jim: If they want to learn about me, they can go to vernerbrumley.com and take a look and have a read or pick up the phone and give me a buzz and we’ll go have lunch, grab a drink, whatever.

Holly: Awesome. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.