You should not communicate with the arbitrator before or after the hearing, except on procedural issues such as scheduling the hearing and issuing subpoenas. Never discuss the merits of your case with the arbitrator outside of the hearing. You will be given a chance to explain your side of the story at the hearing while the lawyer is present so that the lawyer may respond to each issue you raise.
If you have to communicate in writing with the arbitrator, you must send copies of all letters and any attachments to the attorney whose fees you are disputing.
What does the arbitrator expect from the parties?
The arbitrator will expect the parties to be fully prepared to explain and support their positions on the value of the lawyer's services and to have all 2 Rev.4/7/2021 documents and witnesses organized and ready at the hearing. The arbitrator will not expect you to act like a lawyer, but they will expect your case to be presented in an organized and efficient manner. If you have documents to submit, provide copies to the arbitrator and the attorney whose fees you are disputing before the hearing.
What is the role of the arbitrator?
The arbitrator is a neutral decision maker, who considers the evidence presented by all parties and makes a decision on the lawyer's fees. The arbitrator cannot represent either the lawyer or the client in the dispute. Nor does the arbitrator typically independently investigate or gather evidence to support either side's position. The arbitrator must make the decision based on the evidence given by the parties.
What if the fee agreement does not comply with the law?
If the fee agreement fails to comply with the law, you may "void" or reject it, but the lawyer may still be entitled to receive a reasonable fee. So, as discussed below, you must still be prepared to present a case to the arbitrator with the specific reasons why you believe the fee charged is not reasonable. You may present evidence of what a reasonable fee should be
What if the fee agreement was oral and a written agreement was not required?
If the fee agreement was oral, and a written fee agreement was not required, the arbitrator will decide what you and the attorney intended as the terms of your agreement. For example, the arbitrator will determine the agreed upon hourly rate and any other fees or costs. You should be prepared to present any evidence that supports your claim, whether that evidence is in the form of written documents or a witness who was present when you discussed the fee with your attorney.
What if a written fee agreement was required but there isn't one?
If the lawyer did not use a written fee agreement, but was required to by law, the arbitrator will consider the terms of any oral agreement and whether they were reasonable. For example, if you orally agreed to pay the lawyer $300 per hour, but the arbitrator believes that $300 is not reasonable, the arbitrator may assess a reduced hourly fee. Or, if you orally agreed to a minimum fee per telephone call, even if the actual time spent on the call was less, and the arbitrator believes this is a reasonable practice, those charges will be enforced.
What does the arbitrator look at if there is a written fee agreement?
If there is a written fee agreement, the arbitrator may consider whether the agreement is valid and whether the terms of the agreement (for example, the hourly fee) should be upheld. You should review the fee agreement before the hearing to determine if it answers your questions about the lawyer's charges. If the arbitrator determines the agreement to be valid and that you understood the agreement, the arbitrator will generally use the terms of the agreement as a basis for making the decision.
The arbitrator also looks at the lawyer's "performance" in deciding the amount of the fee. For example, did the lawyer spend too much time on a specific task, or did the lawyer make mistakes that required extra time to fix? You should review the lawyer's bills and performance and decide whether, based on these factors, you believe the fee is too high. You should be prepared to point out specific items that support your belief
What evidence does the arbitrator use to make a decision?
One of the first things the arbitrator will look at is whether there is a written fee agreement. If there is, the parties should submit a copy of the agreement to the arbitrator. In most instances, lawyers are required to use written fee agreements. If they do not, however, they are still entitled to a reasonable fee. The arbitrator will also consider the testimony of the parties, the billing statements, and other relevant evidence presented.
What does the arbitrator use as a basis for making a decision?
The arbitrator makes a decision based on any documents and testimony presented. The arbitrator's decision will be based on a number of factors. These include, among other things:
• How difficult the case was, and the skill needed by the lawyer to handle it.
• Whether the lawyer was prevented from taking other cases because they were hired by you.
• How much the case was worth and what the final results were.
• Any circumstances or time limitations that may have required that the lawyer spend additional hours.
• The lawyer's experience and ability.
• The time the lawyer spent on the case.
• Whether you understood and agreed to the fee arrangement.
Are we allowed to settle the fee dispute before the arbitration hearing?
Yes. Parties are encouraged to discuss the dispute prior to arbitration and to try to settle it informally. Fee disputes sometimes occur because the lawyer and client have stopped communicating with each other. Sometimes, discussing the dispute may lead to early settlement. Some fee arbitration programs will refund a portion of the arbitration filing fee if the dispute is settled early in the process. Check the rules of the program you are using.
