A recent law.com story, “N.J. Appeals Court Rebukes Judge Who Cut Fee Award to Discourage Fee-Shifting” reports that a New Jersey appeals court had some critical words for a judge who said he routinely trims fee awards to discourage fee-shifting, calling that seat-of-the pants policy “legally untenable.”  A judge “may not impose his or her own policy considerations to arbitrarily reduce a litigant’s otherwise legally justifiable [fee] application,” the Appellate Division said in remanding the case for fee re-calculation.  The underlying case was a probate matter involving an updated and unsigned will and codicil.  Superior Court Judge William Todd dismissed the case, finding insufficient evidence.

Attorneys applied for fees of $34,433 under Rule 4:42-9(3), which allows a contestant an award of fees from the estate if it appears “that the contestant had reasonable cause for contesting the validity of the will or codicil.”  Todd found there was reasonable cause and also found the hourly rate was “fair, realistic, and accurate” under Rendine v. Pantzer, the court’s seminal fee-shifting ruling.  But Todd deducted 15 percent, awarding a total of $28,974, to reflect what he deemed his personal policy of “deterring” such fee-shifting.  But on appeal, Judge Jose Fuentes said that a “judge’s personal views about the need to generally discourage fee-shifting cases is not a valid factor and cannot be included in the analysis mandated by the Court in Rendine.”