Reviewing the decision of Monroe County Surrogate Edmund A. Calvaruso which awarded the petitioner’s attorney $5,955, after the executor appealed, the Fourth Department Appellate Division reduced the original fee to $2,977.50. This decision, in the Matter of the Estate of Katharine Dressauer N.Y.S.2d 760 also sets forth the factors by which a legal fee is determined. These factors include " the time and labor expended, the difficulty of the required skill to handle the problems presented, the attorney’s experience, ability and reputation, the amount involved , the customary fee charged for such services, and the results obtained"
The factors listed by the Court are basic and are known –or should be known– to every attorney able to find the courthouse. There is an important lesson (maybe there are two or three) to be learned by this case. The result here of a knock down, drag out fight in the Appellate Division was a reduction in the original legal fee by a whopping $3,000. Your faithful lawblogger would surmise that the time and expense invested in this appeal probably exceeded the entire amount in controversy. Certainly it costs at least $3,000 to go to the Appellate Division!
The next lesson for counsel is that pride is an expensive commodity. Mounting a full-scale battle over a $5,900 fee in the Appellate Division does nothing to enhance one’s image in one of the most important courts in the state. My own opinion is that an attorney is cheapened by such a fight. The impression that this makes can do nothing positive for a lawyer’s image the next time he or she appears before the Appellate Division, hopefully on a case where there is far more at stake than a few thousand dollars in legal fees.
Usually, the expense, delay and ordeal of appellate litigation provides enough grease to oil the wheels of settlement. Virtually any settlement –reasonable or not– is better than ending up in front of four appellate division justices on such a trivial matter. A local justice once mentioned to me that certain cases become "lunchroom munchies", his way of saying that the really ridiculous stuff gets discussed by jurists over lunch on many occasions. Don’t let your case become a lunchroom munchy.