THE NEXT CASE ON THE COURT'S CALENDAR IS PIRELLI TIRE VERSUS JENSEN. MS. LUMISH, I BELIEVE.

WENDY LUMISH HERE, WITH CARLTON FIELDS, ON BEHALF OF PIRELLI. THE ISSUE IN THIS CASE IS WHETHER A CONTINGENT RISK MULTIPLIER CAN BE ISSUED WITH REGARD TO THE AWARDING OF STATUTES. WE AGREE THAT THE MULTIPLIER CAN BE APPLIED APPLIED WITH REGARD TO THIS -- APPLIED WITH REGARD TO THIS PARTICULAR STATUTE. WHAT I BELIEVE THE COURT HAS TO DO IS TO LOOK AT THE LANGUAGE OF THE STATUTE AND TO INTERPRET THE LANGUAGE OF THE STATUTE, IN CONTEXT WITH THE PURPOSE OF THE STATUTE, AND, IN FACT, WE HAVE SEVERAL CASES, OVER RECENT YEARS, THAT HAVE TALKED ABOUT THE MULTIPLIER, AND HAVE ADDRESSED THIS ISSUE OF HOW YOU MAKE THESE DETERMINATIONS. IN THE QUANSTROM CASE, THE COURT TALKS ABOUT THAT THERE IS DIFFERENT CRITERIA THAT MAY BE USED, TO DETERMINE THE LEGISLATURE OR THE COURT'S OBJECTIVES, AND WE NEED TO FOLLOW THOSE CRITERIA. THE CRITERIA MUST BE CONSISTENT WITH THE FEE FEE-AUTHORIZING STATUTE.

THE COURT, SINCE IT IS MIDNINETIES, THAT HAVE RULED ON THIS, HAVE CONSISTENTLY RULED THAT THE REFERENCE TO THE GUIDELINES PROMULGATED BY THE SUPREME COURT IS A CLEAR REFERENCE TO THE 4-1.5-B. CORRECT?

I BELIEVE THAT THAT IS CORRECT, THAT IT TAKES TO YOU LOOKING AT 4-1.5, BUT THAT DOESN'T TOTALLY ANSWER THE QUESTION, BECAUSE THEN YOU HAVE TO SAY WHAT DOES THAT MEAN, AND BEFORE WE GET THERE, LET'S TALK ABOUT THE FACT THAT THERE ARE SEVEN OR SIX FACTORS THAT ARE SPECIFICALLY LISTED IN THE STATUTE, AS CRITERIA TO BE CONSIDERED, AND THOSE ARE THE KINDS OF FACTORS THAT DPEE DIRECTLY TO THE PURPOSE OF THE STATUTE. IN OTHER WORDS THINGS LIKE THE EXISTING MERIT OF THE CLAIM OR THE CLOSENESS OF THE ISSUES OF LAW, IN FACT, GO DIRECTLY TO WAS IT REASONABLE TO REJECT THE OFFER, WHICH ARE THE TYPES OF THINGS THAT YOU WOULD EXPECT THE COURT TO CONSIDER, IN DETERMINING WHETHER OR NOT -- WHETHER OR NOT THERE SHOULD BE OR NOT WHETHER OR NOT BUT HOW HIGH THE PENALTY SHOULD BE.

BUT THE PROBLEM I HAVE WITH THAT IS THAT, IF YOU WOULD JUST LOOK AT THESE SEVEN FACTORS, AND, OF COURSE, IT SAYS ALONG WITH OTHER RELEVANT CRITERIA, IT SAYS NOTHING ABOUT THE HOURS INVOLVED OR THE HOURLY RATE, SO YOU, CLEARLY, HAVE TO GO TO SOME OTHER REFERENCE, TO DETERMINE REASONABLENESS.

YES. I AGREE WITH YOU. MY POINT IS THAT WE START WITH AND INITIATE THE STATUTE. IT IS VERY CLEAR IN THE GUIDELINES, AND I THINK YOU SHOULD GO TO THE GUIDELINES, AND THEY DO GIVE YOU THE HOURS AND THE RATE, AND AS THIS COURT HAS, MOST OFTEN, SAID, IN MOST FEE DISCUSSIONS, YOU ARE GOING TO GO BACK TO THAT CORE, AND YOU ARE GOING TO LOOK AT HOURS, AND YOU ARE GOING TO LOOK AT RATES, AND THAT IS WHERE YOU START TO DO ALMOST ANY KIND OF DETERMINATION, AND IN THIS CASE NOBODY OBJECTED TO THAT. THAT IS WHERE WE STARTED WAS THE LOAD STAR.

WHAT WAS THE HOURLY RATE THAT WAS USED FOR THE MULTIPLIER?

IT WAS DIFFERENT HOURLY RATES, BECAUSE WE WERE DEALING WITH NAME OF ATTORNEYS. I THINK IT RAIRNGED FROM $275 -- IT RANGED FROM $275 ON DOWN FROM THERE.

DOWN FROM THERE.

DOWN FROM THERE, I BELIEVE.

CONTINGENT WITH THESE MULTIPLIERS, IF THE COURT USED $150 AN HOUR AND MULTIPLIED IT BY TWO, THAT WOULD BE AN HOURLY RATE OF $300, WHICH I DON'T THINK WOULD SHOCK ANYBODY'S CONSCIENCE.

IN THIS CASE THE COURT USED, FOR MR. SMITH, I BELIEVE, WHO WAS TRIAL COUNSEL, THE COURT USED THE RATE THAT PLAINTIFF HAD ASKED FOR. THE ONLY DISCREPANCY WAS THAT, WHEN THERE WAS AN ADDITIONAL REQUEST FOR FEES APPEAL, THERE WAS A REQUEST TO UP THE RATE LATER ON, AND I BELIEVE THEY OBJECTED TO THAT. IT WAS EITHER THE RATE THE COURT HAD USED OR $25 HIGHER THAN THAT. IT WAS SOMETHING SIMILAR BUT NOT A DISPUTE. IT WAS, LIKEWISE, A DISPUTE ON THE TIME SPENT ON TASKS. IT WAS THE ELIMINATION OF TASKS THAT WERE IRRELEVANT.

IS THE ARGUMENT AGAINST THE USE OF THE MULTIPLIER, IN THIS INSTANCE, REALLY, ONLY WITHIN THE EQUAL PROTECTION AREA? AND WHAT PROMPTS MY QUESTION IS IT, REALLY, IF IT A, A MULTIPLIER IS NOT ALLOWED, IN THIS PARTICULAR INSTANCE, THAT WOULD PRETTY MUCH FLY IN THE FACE OF WHAT THIS COURT HAS APPROVED CONTRACT CASES, IN COMMON CASE CLASS ACTION.

I DON'T THINK SO. BECAUSE YOU HAVE TO LOOK AT IT IN THE CONTEXT OF THE PARTICULAR STATUTE, AND IT IS LIKE THAT IS WHAT THE COURT HAS, ALWAYS, DONE WHEN THEY HAVE MADE THE DECISION. THE PROBLEM IN THIS CASE, WITH USE OF A MULTIPLIER, IS THE OFFER OF JUDGMENT STATUTE IS DESIGNED AS A SANCTION. IT IS INTENDED TO SANCTION AN ATTORNEY OR TO SANCTION A CLIENT WHO FAILS TO REASONABLY SETTLE A CLAIM. ON THE OTHER HAND, IF YOU LOOK BACK AT WHERE THE MULTIPLIER CAME FROM, THAT CAME OUT OF THE CONTEXT, ORIGINALLY, OF A FEE-SMITHING -- A FEE-SHIFTING STATUTE. IT STARTED OUT IN THE PUBLIC INTEREST. WE WANTED TO MAKE SURE THAT THERE COULD BE PRIVATE ENFORCEMENT OF STATUTES THAT MIGHT NOT OTHERWISE GET, ATTRACT COUNSEL TO THOSE CASES, AND THEN, IN THE ROWE CASE, THIS COURT --

DID THIS COURT, HAS THIS COURT ACTUALLY SAID THAT THIS IS A SANCTION?

I BELIEVE I HAVE TO PAUSE ON THAT. I AM NOT SURE WHETHER OR NOT IT WAS AN ACTOR A STATEMENT THAT THERE WAS A SANCTION. THERE HAVE BEEN DISCUSSIONS, IN CASES, OF THE FACT THAT IT, REALLY, DOES ACT AS A SANCTION, AND I THINK THERE CAN BE NO QUESTION, AND IN FACT, THERE HAS BEEN NO DISPUTE. THE PURPOSE OF THIS IS TO ENCOURAGE THE SETTLEMENT OF CASES. WHEN YOU DON'T SETTLE A CASE AND DO YOU IT IN AN UNREASONABLE MANNER, YOU ARE GOING TO BE SANCTIONED. KEEP IN MIND THAT, AT THIS POINT, IT IS A MANDATORY SANCTION. THERE IS NO DISCRETION IN THE COURT TO REJECT A -- SOME TYPE OF AWARD, EVEN IF THERE IS A DETERMINATION THAT IT WAS PERFECTLY REASONABLE TO HAVE NOT SETTLED THE CASE, WHICH WE WOULD SUBMIT WAS THE CIRCUMSTANCE HERE. WE, REALLY, HAVE THE FACT PATTERN THAT I THINK IS THE TOUGHEST OR THE EASIEST, HOWEVER YOU VIEW IT, TO LOOK AT IT, BECAUSE WE HAD A CASE THAT HAD NO MERIT AT THE OUTSET. IT WAS TOTALLY REASONABLE FOR PIRELLI NOT TO HAVE ACCEPTED THAT OFFER, AND NOW THEY ARE FACED WITH A POSITION THAT NOT ONLY ARE THEY PAYING THE HOURLY TIMES, YOU KNOW, THE REASONABLE RATE, BUT THEY ARE PAYING SOME ENHANCED FEE.

BUT COULDN'T THE JUDGE, THOUGH, BECAUSE THIS IS A DISCRETIONARY CALL, AND IT IS ON THAT ISSUE, BECAUSE ONE OF THE FACTORS TO CONSIDER IS THE CLOSENESS OF QUESTIONS A FACT IN LAW, COULDN'T THE JUDGE, REALLY, DECIDE TO OFFSET THE MULTIPLIER BY SAYING THAT, IN THIS CASE, EVEN THOUGH THERE WAS A HIGH-RISK, THAT BECAUSE IT WAS SO CLOSE AND BECAUSE IT WAS REASONABLE, I AM GOING TO DISCOUNT THE MULTIPLIER. ISN'T THAT WITHIN THE COURT'S DISCRETION TO DO THAT?

WELL, NO. I DON'T THINK SO. BECAUSE I THINK THE PRELIMINARY QUESTION IS CAN YOU USE A MULTIPLIER AT ALL, AND THAT IS CLEARLY A LEGAL QUESTION, AND SO YOU HAVE GOT TO, FIRST, ANSWER THE MULTIPLIER. AS TO HOW YOU EVALUATE THE CLOSENESS OF THE QUESTION AND THOSE O'CLOCK FACTS KINDS OF FACTORS, THAT -- AND THOSE KIND OF FACTORS, THAT IS DISCRETIONARY.

BUT CAN'T THE COURT DECIDE AND DETERMINE A REASONABLE FEE THAT, BECAUSE IT WAS SO REASONABLE FOR THE DEFENDANT TO REJECT IT AT THAT POINT IN TIME, THAT THEY CAN ADJUST THE AMOUNT DOWNWARD. CAN THAT NOT HAPPEN?

I THINK IT COULD HAPPEN THAT YOU ADJUST IT, BUT I DON'T THINK THAT YOU CAN SAY THAT THAT GETS YOU TO THE SAME PLACE, BECAUSE YOU HAVE TO, FIRST, DETERMINE THE LEGAL ISSUE OF IS THERE A MULTIPLIER. HAD THERE NOT BEEN A MULTIPLIER, THE JUDGE COULD HAVE ADJUSTED DOWN, WHICH WAS OUR POSITION.

LET ME ASK SOMETHING MORE BASIC ABOUT THIS EQUAL PROTECTION CHALLENGE OR QUESTION. IN THE TRIAL COURT, DID YOU RAISE AN EQUAL PROTECTION QUESTION?

YES, WE DID.

WAS THAT AN ISSUE ON APPEAL?

IT WAS RAISED IN THE BRIEFS ON APPEAL. IT WAS NOT A HUGE ARGUMENT IN THE ISSUES ON APPEAL, BUT IT WAS CLEARLY RAISED. WE CHALLENGED IT, UNDER THE FLORIDA AND FEDERAL CONSTITUTION, AND WE CITED, IN SUPPORT OF THAT, THE PLATT CASE. WHERE THIS ARGUMENT, REALLY, COMES DOWN, I THINK YOU HAVE TO GO BACK TO THE BASIC ON THIS ISSUE AND ASK THE QUESTION OF IS A MULTIPLIER RELEVANT, IN THE CONTEXT OF THE OFFER OF JUDGMENT STATUTE? WE SUBMIT THAT THE ANSWER TO THAT IS NO. AND THE REASON FOR THAT IS YOU ARE DEALING WITH A STATUTE, ON ONE HAND, INTENDED TO ACT AS A SANCTION OR PUNISHMENT FOR FAILING TO REASONABLY SETTLE, AND ON OTHER HAND, IT WAS TO ENCOURAGE LITIGATION. THEY HAVE SEPARATE AND DISTINCT PURPOSES. SO TO ASK, IN DETERMINING WHAT IS A PROPER SANCTION, TO TURN AROUND AND SAY HOW MUCH SHOULD WE HAVE REWARDED SOMEBODY ELSE --

I HAVE A LITTLE BIT OF A HARD TIME WITH THE CONCEPT THAT A MULTIPLIER IS INTENDED TO ENHANCE LITIGATION. IT STRIKES ME THAT A MULTIPLIER HAS SOME TENDENCY TO DO THE SAME THING THAT YOUR ARGUMENT IS THAT THE STATUTE IS INTENDED TO DO, AND THAT IS TO SAY THAT, YOU KNOW, IF YOU DON'T SETTLE THIS CLAIM, THEN YOU ARE GOING TO BE -- HAVE TO RESPOND IN EXTENSIVE ATTORNEYS FEES, WHICH WOULD INCLUDE THE MULTIPLIER. THAT IS MY FIRST QUESTION. SECONDLY, WHY CAN'T A MULTIPLIER BE USED AGAINST THE DEFENDANT?

WELL, TO ANSWER THE FIRST QUESTION, IN THE ROWE CASE, THIS COURT RECOGNIZES THAT ONE OF THE PURPOSES OF THE MULTIPLIER BE TO DISCOURAGE BASELESS CLAIMS. IT, CLEARLY, RECOGNIZED THAT THE PURPOSE WAS TO ENCOURAGE LITIGATION THAT WOULD NOT OTHERWISE BE BROUGHT, AND I THINK, IF YOU GO BACK HISTORICALLY AND LOOK AT WHERE THE MULTIPLIER CAME FROM, IT CAME OUT OF THESE FEE-SHIFTING STATUTES, WHICH WERE CLEARLY DESIGNED TO ENCOURAGE LITIGATION, AND SO I THINK THAT THE HISTORY, AS IT IS DEVELOPED IN THIS COURT AND IN ROWE AND ON, FORWARD, IS CLEAR, THAT THE PURPOSE OF A MULTIPLIER IS TO ENKUGE -- TO ENCOURAGE LITIGATION THAT OTHERWISE MIGHT NOT BE BROUGHT, BECAUSE IT WAS NOT ECONOMICALLY FEASIBLE TO BRING THOSE CLAIMS, SO I THINK THAT IT IS VERY CLEAR THAT WE ARE TALKING ABOUT TWO DIFFERENT ASPECTS OF IT HERE, AND LET ME SWITCH OVER TO ANOTHER REASON, RELATED REASON, WHY YOU CAN'T HAVE A MULTIPLIER. THAT IS THE, REALLY, BASIC REASON THAT, IN THIS COURT, IN THE SUNBANK CASE, SAID, IN ORDER TO HAVE A MULTIPLIER, YOU MUST ESTABLISH THAT THERE WAS A NEED, IN THE RELEVANT MARKET FOR THE MULTIPLIER. IN THE CONTEXT OF AN OFFER OF JUDGMENT STATUTE, THERE IS NO EXPECTATION, AT THE TIME, THAT THE LAWYER TAKES ON THE CASE, THAT HE IS GOING TO GET SOME KIND OF MULTIPLIER, BASED ON ON THE OFFER OF JUDGMENT STATUTE, AND INDEED FROM A PUBLIC POLICY STATUTE, YOU DON'T WANT TO ENCOURAGE THAT, BECAUSE YOU DON'T WANT TO BE SAYING TO LAWYERS GO OUT AND TAKE CASES, UNDER THE THOUGHT THAT YOU MIGHT GET A MULTIPLIER THAT IS THE PROBLEM WITH A JUDGMENT. THAT IS NOT WHY YOU TAKE ON CASES, AND MORE IMPORTANTLY, YOU WOULD BE SUGGESTING THAT YOU SHOULD, ACTUALLY, HAVE OFFERS OUT THERE, FOR THE SOLE PURPOSE OF HAVING THEM REJECTED AND GETTING A MULTIPLIER, RATHER THAN THE PURPOSE OF HAVING GOOD FAITH OFFERS OUT THERE, SO YOU ARE ENCOURAGING ALL OF THE WRONG BEHAVIOR, IF YOU SAY THAT A MULTIPLIER IS SOMETHING THAT COULD HAVE POSSIBLY BEEN EXPECTED AT THE OUTSET OF THIS PARTICULAR LITIGATION. IF IT WAS A TYPE OF CASE WHERE A MULTIPLIER COULD HAVE BEEN EXPECTED, IT WOULD BE A CASE WHERE YOU HAVE A FEE-SHIFTING STATUTE, SO THAT WHEN MR. SMITH TOOK ON THE CASE, HE KNEW HE WAS ENTITLED TO A FEE, IT IS NOT WITH THE HOPE THAT SOMEWHERE ALONG THE LINE THE POLICY MIGHT BE REJECTED, AND IN FACT I BELIEVE THAT IS WHERE WE DID THE ISSUES IN THE SECOND DISTRICT, THAT THE SECOND DISTRICT MADE EXACTLY THAT POINT OF HOW COULD YOU EVER HAVE THAT EXPECTATION, AND INTERESTINGLY THE FIFTH DISTRICT HAS, NOW, SAID THE SAME THING, AND THE FIFTH DISTRICT WAS THE COURT THAT ORIGINALLY SAID THAT, UNDER THE STATUTORY LANGUAGE, THAT THEY FOUND THAT A MULTIPLIER COULD BE OKAY. THERE IS, NOW, THIS LATER DECISION OUT THERE, QUESTIONING WHETHER OR NOT YOU COULD EVER PROVE THAT PRONG, SO THERE, REALLY, IS A VERY SIMPLE ANSWER TO THE COURT, AND PURSUANT TO THE SUNBANK CASE, CAN NEVER ESTABLISH IN THIS TYPE OF CASE THAT A MULTIPLIER WAS NEEDED, AND INDEED, WE DON'T WANT TO ENCOURAGE THAT TO OCCUR. AS A BOTTOM LINE ON OUR ANALYSIS OF THIS, THE USE OF A MULTIPLIER IS INHERENTLY INCONSISTENT WITH THE PURPOSE OF THE MULTIPLIER. WHAT IT DOES IS ENCOURAGE THE VERY SAME FACTORS THAT INCREASE, UNDER ONE STATUTE, DECREASE UNDER ANOTHER. IT FORCES A FEE TO BE INCREASED, WHEN IT SHOULD ACTUALLY BE REDUCED. IT GIVES A HIGHER AWARD, AS A SANCTION IN A WEAKER CASE, AS WE HAD HEAR -- HERE, WHEN WHAT WE WANT TO DO IS ENCOURAGE STRONGER CASES TO BE SETTLED NOT THE WEAK CASES. YOU DON'T WANT TO ENCOURAGE, IN THIS PARTICULAR FACT PATTERN, THAT PIRELLI SETTLE A CASE THAT HAD NO MERIT. THAT IS NOT THE TYPE OF POLICY YOU WANT TO TRY TO SET. WHILE A HIGHER FEE MIGHT HAVE BEEN OKAY, IF YOU VIEWED THIS IN THE CONTEXT OF A PREVAILING PARTY STATUTE, BECAUSE THERE YOU WOULD BE ENCOURAGING LITIGATION, AND THAT IS THE PURPOSE THERE, WHEN YOU TURN THAT AROUND AND LOOK AT IT FROM THE PERSPECTIVE OF THE OFFER OF JUDGMENT STATUTE, YOU WANT TO BE ENCOURAGING THE RIGHT KIND OF CASES TO SETTLE. THIS WASN'T THAT TYPE OF CASE, SO YOU, REALLY, HAVE TWO PURPOSES THAT ARE ABSOLUTELY DIMEETCALLY OPPOSED, AND IT HAPPENS THAT THE FACT PATTERN OF THIS CASE, REALLY, DRAMATICALLY MAKES THAT POINT, BECAUSE WE HAD A SITUATION WHERE THERE WAS NO DOUBT, NO DISAGREEMENT, THAT THE CASE HAD NO MERIT AT THE OUTSET. THERE WAS NO REASON FOR PIRELLI TO HAVE EVER SETTLED A CASE OF THIS NATURE, AND YET --

WHAT WAS THE DAMAGE EXPOSURE IN THIS CASE?

THE DAMAGE EXPOSURE WAS WELL IN EXCESS OF THE OFFER OF JUDGMENT. THERE IS NO QUESTION ABOUT THAT.

AN OFFER OF $3 MILLION?

YES. IN THE SAME.

WERE YOU LOOKING AT PLAINTIFF'S AND -- AT PLAINTIFFS AND DEFENDANTS, THERE ARE MANY CIRCUMSTANCES WHERE A DEFENDANT, IN A CASE LIKE THIS LIKE THIS, WITH DIFFICULT LIABILITY, WILL MAKE A LOW-BALL OFFER, FOR A $50,000 OFFER OR $10,000 OFFER. ISN'T THE PLAINTIFF, IN THAT SITUATION, FACED WITH THE SAME CIRCUMSTANCE, THAT IS UNDERSTANDING THAT THERE IS A POSSIBILITY OF GETTING NOTHING OR HAVING A SPECIAL FEE ASSESSED AGAINST IT, THAT THEY ARE PUT IN A SPECIAL CIRCUMSTANCE. WHY ISN'T THAT THE SAME THING THAT HAS HAPPENED HERE, WHERE THE DEFENDANT, NOTING THAT THE CASE MAY BE LOST, HAS TO LOOK AT THE RISK OF WHAT WILL HAPPEN, IF THEY LOSE, AND IT WILL, THEREFORE, ENCOURAGE THOSE KINDS OF CASES TO BE RESOLVED AT AN EARLY STAGE?

I THINK THAT IS TRUE, AND THANK IS EXACTLY WHAT DVORAK SAID, WHEN IT SAID THAT, IF A PLAINTIFF HAD A HIGH DAMAGE CASE AND THEY DON'T SETTLE FOR A LOW NUMBER, WE, CERTAINLY, WOULDN'T PENALIZE THEM, EITHER, AND YOU WOULD HAVE A REDUCED FEE, BUT THE POINT IS, IN BOTH OF THOSE CIRCUMSTANCES, YOU WOULD HAVE A LOWER FEE, BECAUSE YOU WOULDN'T BLAME THE PLAINTIFF'S ATTORNEY FOR NOT SETTLING THAT KIND OF CASE, JUST LIKE YOU DON'T FAULT PIRELLI, IN THIS CIRCUMSTANCE, FOR NOT SETTLING THE CASE. I KNOW THAT HE I AM INTO MY TIME. THE BOTTOM LINE OF IT IS THAT WE WANT TO ENCOURAGE WHAT THE STATUTE WAS DESIGNED TO DO, AND IN ORDER TO DO THAT, WE HAVE TO GIVE EFFECT TO WHAT THIS STATUTE WAS DESIGNED TO DO AND NOT OTHER STATUTES WITH OTHER PURPOSES.

THANK YOU, MS. LUMISH. MR. SMITH. MAY IT PLEASE THE COURT. I AM HUGH SMITH. WITH ME, TODAY, IS DIANA FULLER, OF THE LAW FIRM OF SMITH AND FULLER IN TAMPA. THE CERTIFIED QUESTION BEFORE THE SECOND DISTRICT COURT OF APPEALS WAS ABOUT THE -- -- WAS WHETHER THE APPLICATION OF A CONTINGENCY RISK MULTIPLIER TO THE AWARD OF ATTORNEYS FEES UNDER SECTION 768.79, FLORIDA STATUTES, THE 1993 VERSION, VIOLATE THE GUARANTEES OF EQUAL PROTECTION AFFORDED UNDER THE UNITED STATES AND FLORIDA CONSTITUTION. GOING BACK TO A QUESTION THAT THE PANEL ASKED INITIALLY, THIS CASE DID ARISE IN A SOMEWHAT OR AT LEAST THIS ISSUE DID ARISE IN A SOMEWHAT UNUSUAL FASHION, BECAUSE THE EQUAL PROTECTION ARGUMENT IS NOT SOMETHING THAT WAS RAISED AT THE TRIAL COURT, AND IT WAS RAISED TANGENTI L.A. LY, ONLY BECAUSE OF THE ISSUE WITH THE SECOND DISTRICT.

WAS IT ONE OF THE SEPARATE ISSUES RAISED ON APPEAL, THAT OBJECTION?

IT WAS NOT. IT FINDS ITS GENESIS IN THE DISSENTING OPINION OF JUDGE --

YOU SAID IT WAS NOT RAISED IN THE TRIAL COURT. MS. LUMISH SAID IT WAS RAISED IN THE TRIAL COURT. EYE WANT TO BE COMPLETELY ACCURATE. IF IT WAS RAISED, IT WAS RAISED TANK EVENINGSLY. -- TANGENTILLY. IF IT WAS, IT WAS NOT A MAJOR FOCUS.

COULD YOU, BEFORE YOU GO TO WHAT AT LEAST IS PERCEIVED TO BE A NARROWER ISSUE, ADDRESS THE QUESTION THAT JUSTICE PARIENTE ASKED, EARLIER, ABOUT WHAT IS THE STATE OF THE LAW, AS FAR AS THE STANDARDS THAT THE TRIAL COURT, OR THE DISCRETION THAT THE TRIAL COURT HAS TO CONSIDER AN AWARD OF FEES, HERE, IN ANY CASE? THAT IS AS FAR AS THE REASONABLENESS OF THE ACTION OF REJECTING THE OFFER AND OTHER CONSIDERATIONS IN AWARDING ATTORNEYS FEES, UNDER THIS STATUTORY SCHEME. WHAT DO YOU UNDERSTAND TO BE THE STATE OF THE LAW, NOW, AS FAR AS THE STANDARDS OUT THERE, AND THE DISCRETION OF THE TRIAL COURT, AS FAR AS WHAT FACTORS OR MATTERS TO CONSIDER, IN DETERMINING ATTORNEYS FEES?

I THINK THE STANDARDS ARE RELATIVELY CLEAR, AS THEY CURRENTLY EXIST. THAT IS THAT, IF THE AMOUNT OF THE AWARD IS 25% HIGHER OR LOWER, AS THE THE CASE MAY BE, THEN WHAT THE OFFER OF SETTLEMENT, WHICH WE NOW CALL IT TODAY, THEN IT BECOME AS MATHEMATICAL FUNCTION, IN TERMS OF THE ENTITLEMENT TO THE AWARD OF FEES. THAT SBILINGSMENT, OF COURSE, MAY BE LOST, IF THE OFFER WAS NOT MADE IN GOOD FAITH. THEREAFTER, THE COURT APPLIES A LOAD STAR CALCULATION, TAKING THE REASONABLE HOURLY RATE TIMES THE REASONABLE NUMBER OF HOURS, COMES UP WITH A LODESTAR FIGURE, WHICH LODESTAR FIGURE CAN BE CORRECTED UNDER THE LAW, AND IN VIEW OF THE SUNBANK, Q-LINE AND BELK, AND THEN ADD A CONTINGENCY RISK MULTIPLIER FOR THOSE CASES IN WHICH THE REPRESENTATION WAS UNDERTAKEN, ON A CONTINGENCY FEE BASIS, THEN, IN GETTING TO YOUR QUESTION, JUSTICE ANSTEAD, THEN THE COURT IS VESTED IN MY READING OF THE LAW, WITH GREAT DISCRETION IN TERMS OF CONSIDERING THE SIX ADDITIONAL FACTORS, WHICH ARE ENUMERATED UNDER THE STATUTE, AND I BELIEVE THE DICTATES OF THIS COURT HAVE, CLEARLY, GIVEN THE COURT THE DISCRETION AS THE COURT DID IN THIS INSTANCE, TO REDUCE THE ULTIMATE FEE BY A GIVEN PERCENTAGE, BASED UPON THE COURT'S DISCRETION AS TO THE APPLICATION OF THOSE FACTORS. NOW, I AM AWARE OF WHAT TRANSPIRED BEFORE THIS COURT, IN CONNECTION WITH THE AMENDMENTS TO RULE 1.442, IN WHICH THE COURT DECLINED TO ACCEPT THE RECOMMENDATION OF THE FLORIDA BAR THAT THERE BE A SEVENTH FACTOR ADDED INTO THE EQUATION, WHICH WAS THE REASONABLENESS OF REJECTION OF AN OFFER IN PARTICULAR SETTLEMENT, AND THIS COURT REJECTED THAT AND SAID, WELL, IF THERE IS TO AND DEFINITIVE FACTOR, THEN WE LEAVE THAT TO THE LEGISLATURE, TO AMENDMENT THE STATUTE AND COME BACK, AND TO THAT EFFECT YOU RECOGNIZED THE OPINION, WHEN YOU ADOPTED ALL BUT THAT RECOMMENDATION OF THE FLORIDA BAR, AND THAT THE COURT DID HAVE THE DISCRETION AS THE COURT DID, HERE, FOR APPLY ONE ONE MORE OF THE SIX FACTORS ENUMERATED IN THE STATUTE, IN ORDER TO REDUCE THE FEE.

WELL, WOULD THAT, LET'S TAKE THE ONE THAT I WAS ASKING ABOUT EARLIER, WHICH IS THE CLOSENESS OF THE LAW IN FACT. DOES THE COURT HAVE THE MULTIPLIER, INIES DISCRETION THERE WAS THE POST QUESTIONS OF FACT, AT THE TIME THE OFFER WAS MADE, TO REDUCE THE EFFECT OF THE MULTIPLIER FOUND. OR THE EFFECT. IN OTHER WORDS HOW DOES THAT WORK, BECAUSE ONE OF THE ARGUMENTS MADE IS THAT YOU HAVE GOT THE MULTIPLIER, AND IT WOULD BE DIMEETLY OPPOSEED, AND -- DIAMETRICALLY OPPOSED, BECAUSE THERE IS THE FACTOR OF RISK, AND YOU ARE AWARDED THAT, AND ON THE OTHER HAND AN AWARD IN FACT, WHICH, TO ME, THEY PROBABLY WERE REJECTING IT BECAUSE IT WAS CLOSE AND THAT IS REASONABLE TO DO. HOW DO THOSE WORK TOGETHER?

YOU HAVE ASKED ME A COUPLE OF QUESTIONS, AND I WILL TRY TO ADDRESS THEM IN THE ORDER IN WHICH YOU HAVE ASKED THEM, AND THE FIRST QUESTION THAT YOU HAVE INQUIRED ABOUT IS WHETHER THE COURT CAN ADJUST THE MULTIPLIER, AND I TEND TO BELIEVE THAT, UNDER THE EXISTING LAW, THAT IS THE DETERMINATION WHICH IS THE MULTIPLIER TO USE, AND GOING BACK TO THIS COURT IN THE CASE OF ROEN VERSUS QUANSTRUM, AND THE FINDING OF FACT AS TO WHETHER THE CHANCES OF FINDING, AT THE ONE SET OF LITIGATION -- AT THE ONSET OF PRETTYGATION, WAS MORE -- OF LITIGATION, WAS MORE LIKELY AT THE TIME, AND CHOOSES THE MULTIPLIER TO BE USED. THEN WE GET TO THE ISSUE OF THE APPLICATION OF THE SIX FACTORS, SO THAT, ARGUABLY, YOU HAVE THE USE OF THE LODESTAR FIGURE. YOU APPLY THE APPROPRIATE MOD FIRE OR MULTIPLIER TO IT, AND, AGAIN, I AM ADDRESSING THESE ISSUES IN THE PRECISE ORDER IN WHICH THE STATUTE ADDRESSES THEM. THEN YOU HAVE THE SIX FACTORS, SUCH AS THE FACTOR OF THE CLOSENESS OF THE QUESTION OF FACT AND LAW OR WHETHER, FOR EXAMPLE, AT THE TIME THE COURT DETERMINES THE APPROPRIATE FEE TO BE AWARDED, IN CONNECTION WITH THIS CASE, THE THEN-APPARENT MERIT OF THE CLAIM. NOW, THERE IS NO GUIDANCE FROM ANY COURT IN FLORIDA, AS TO HOW THE TRIAL COURT IS TO APPLY THOSE FACTORS. THAT IS, AND IN THIS CASE, THE TRIAL JUDGE FELT, AND I BELIEVE ERRONEOUSLY, BUT THIS IS A DIFFERENT ISSUE, ALL THOING -- ALL TOGETHER, FELT THAT THE REDUCTION OF THE TOTAL FEE, ONCE HE COMPUTED TOTAL FEE, WAS TAKE%, AND, AGAIN, HE -- WAS 25%, AND, AGAIN, HE WENT BACK TO THE FACTOR, IN HIS ORDER, IN WHICH HE FOUND THAT, ALTHOUGH THE CASE HAD TREMENDOUS MERIT, BY THE TIME IT WENT TO TRIAL, THAT THERE WAS A DEVELOPMENT IN THE CASE, BETWEEN THE TIME THE OFFER WAS REJECTED AND THE TIME THAT THE ULTIMATE CASE WENT TO TRIAL.

SO IN SOME WAY, WHETHER YOU AGREE OR DISAGREE WITH THAT, THEN THAT -- I DON'T KNOW WHAT THE MATHEMATICAL DIFFERENCE IS, BUT THAT OFFSETS, IN A WAY, THIS CASE, THE JUDGE OFFSETS A MULTIPLIER THAT WHAT YOU AGREE --

THAT IS THE PRACTICAL WAY THAT HE DID.

I WANT TO GET BACK TO THE FACT THAT THE INDEPENDENT MULTIPLIER IS A MANDATORY ONE. IN THE COLLINS CASE, WHICH JUDGE WARNER WROTE IN 1995, WHICH, REALLY, WAS THE FIRST CASE TO INTERPRET, THIS THE STATEMENT IS MAY WE CONCLUDE THE LEGISLATURE AUTHORIZED THE TRIAL COURT TO CONSIDER THE APPLICATION OF A CONTINGENCY RISK FACTOR AS ONE CITE EAR YOON WHICH MAY -- CRITERIA WHICH MAY BE APPLIED IN DETERMINING A REASONABLE FEE. YOU ARE SAYING THAT, NO, THERE ISN'T ANY DISCRETION IN WHETHER TO APPLY THE MULTIPLIER.

IF I SAID SO, I MISSPOKE. THERE IS NO QUESTION, UNDER THE EXISTING STATE OF FLORIDA LAW, THE ONLY THING THE TRIAL COURT MUST DO IS MUST CONSIDER THAT THERE IS A LONG LINE OF PRECEDENT COMING OUT OF THIS COURT AND THE LOWER COURTS OF THIS STATE, WHICH CLEARLY HOLD THAT, IF THE TRIAL COURT DETERMINES, FOR WHATEVER REASON, THAT THE APPLICATION OF A MULTIPLIER IS INAPPROPRIATE IN A GIVEN CASE AND, IN FACT, THOUGH I CAN'T TELL YOU THE NAME OF THE CASE, OFF THE TOP OF MY HEAD, THERE IS A CASE THAT DID APPEAR, DID COME UP, EITHER BEFORE THE APPELLATE, I THINK IT WAS BEFORE ONE OF THE APPELLATE COURTS, WHERE THE JUDGE FELT THAT THE CASE WAS WHOLELY LACKING IN MERIT, AND YET FELT THAT HE HAD THE OBLIGATION TO APPLY A MULTIPLIER IN THAT CASE, BECAUSE THE MERE MATHEMATICAL FORMULA OF THE VERDICT BEING 25 PERCENT HIGHER THAN THE OFFER OF JUDGMENT, MANDATED THAT HE DO SO. THE COURTS OF THIS STATE ARE UNANIMOUS. NO. HE MUST CONSIDER THE APPLICATION OF A MULTIPLIER. HE MUST -- HE DOES NOT HAVE TO APPLY ONE. IT IS NOT A QUESTION OF RIGHT, AT THAT JUNCTURE. IT STRICTLY DISCRETIONARY WITH THE COURT. WHEN I GO BACK AND LOOK AT THESE ARGUMENTS THAT HAVE BEEN ADVANCED ON THE EQUAL PROTECTION GROUNDS, LET ME JUST MAKE THE BASIC POINT THAT THE KEY PHRASE, IN THE CERTIFIED QUESTION, IS A CONTINGENCY FEE MULTIPLIER, WHICH REALLY DEMONSTRATES THE SOURCE OF CONFUSION OF JUST CASNUEVA, IN A SENSE, WHO SURGED WHO URGED THE CERTIFIED -- WHO URGED THE CERTIFIED QUESTION BEFORE YOU. YOU CANNOT RAISE CONTINGENCY RISK MULTIPLIER WITH THE PHRASE REASONABLE FEE, FAN YOU LOOK AT STATUTE 68.79, WE SEE THAT THERE IS AN EXACTLY PARALLEL REMEDY FOR PLAINTIFF OR DEFENDANT, REGARDLESS OF LABEL, AND THAT IS, IN THE EVENT THAT A DEFENDANT FILES AN OFFER OF SETTLEMENT, AND THE ULTIMATE VERDICT IS 25 PERCENT LESS THAN THAT OFFER, THEN THE DEFENDANT IS ENTITLED TO A REASONABLE FEE. THE SAME REMEDY IS THE CASE FOR THE PLAINTIFF, WHO RECEIVES A VERDICT 25 PERCENT HIGHER THAN THE OFFER OF SETTLEMENT. THE REMEDY IS THE AWARD OF A REASONABLE FEE, SO THAT, UNDER THE DICK STATES OF -- DICTATES OF THE STATUTE, WE HAVE ABSOLUTELY NO EQUAL PROTECTION VIOLATION, ON THE FACE OF THE STATUTE, BECAUSE THE REMEDY IS THE SAME.

IN FACT, JUST FOLLOWING UP ON THAT, I WAS THINKING ABOUT, THIS THAT FOR THE PLAINTIFF, FACED WITH AN OFFER OF JUDGMENT FROM THE DEFENDANT, WHAT THEY HAVE GOT TO CALCULATE AT, THEY REJECT IT, IS THEY ARE GOING TO BE SUBJECT TO ALL THOSE ADDITIONAL HOURS THAT GO FROM THE TIME OF REJECTION TO THE TRIAL, WHICH CAN BE EXTREMELY SUBSTANTIAL. REALLY, IN THE WAY OF ASSESSING WHAT THE RISK IS GOING TO BE, THE DEFENDANT CAN LOOK AT WHAT THE POSSIBLE DAMAGES ARE AND WHAT THE -- KNOWING WHAT THE FEE IS, AND HAVE A BETTER IDEA OF WHAT THEIR EXPOSURE MIGHT BE. WOULD YOU ADDRESS THAT, AS FAR AS THAT THERE WERE DIFFERENT CONSIDERATION, FOR PLAINTIFFS AND DEFENDANTS, IN THIS MIX, MILES PER HOUR. -- IN THIS MIX, ANYWAY.

THERE ARE DIFFERENT CONSIDERATIONS, AND, OF COURSE, THAT IS THE FOUNDATION FOR ALL OF THESE CASES THAT HAVE APPLIED THE CONTINGENCY FEE RISK MULTIPLIER. YOU, JUSTICE PARIENTE, DID A VERY NICE SURVEY, IN THE OPINION THAT YOU OFFERED IN THE BELL CASE, WHICH YOU TRACED TO SUN LINE AND ULTIMATELY THE BELL OPINION WHICH YOU AUTHORED. I WOULD SUGGEST, IN STANDING BEFORE YOU, IN VIEW OF WHAT THAT OPINION SAID, IN TRYING IT TO DO A SURVEY OF THE REASONS WHY A CONTINGENT RISK MULTIPLIER IS SO IMPORTANT, BOTH IN TERMS OF THE RISK OF NONPAYMENT AND THE RISK OF DELAY.

BUT WE HAVE GOT A SITUATION THAT, IN AN OFFER OF JUDGMENT SITUATION, WHICH IS, REALLY, DIFFERENT, ISN'T IT, BECAUSE IN BELL, WE WERE CONCERNED WITH THE CONTRACT CASE, IN WHICH YOU WEREN'T GOING TO BE ABLE TO GET COUNSEL. HERE WE HAVE GOT -- HERE THERE IS NO ISSUE AS TO WHETHER YOU ARE GOING TO GET COUNSEL. YOU GOT COUNSEL, AND AT THE TIME THAT THE OFFER OF JUDGMENT IS MADE, AND SO THE PART OF THIS EQUATION THAT IS DEALT WITH ON THE BASIS THAT, REALLY, YOU USE A MULTIPLIER OR CONTINGENCY FEE, IN ORDER TO GIVE PEOPLE WHO DON'T HAVE THE OPPORTUNITY TO GET COUNSEL, TO GET COUNSEL, REALLY, ISN'T AS APPLICABLE, IN THIS SITUATION, IS IT?

I BELIEVE IT IS. AND I THINK YOUR QUESTION CAN BE, REALLY, ADDRESSED ON THREE DISTINCT LEVELS. THE FIRST LEVEL IS THE PRACTICAL CONSIDERATION. NOW, LET'S CHANGE OUR FACTS, HERE, JUST AS SLIGHT, AND INSTEAD OF THIS BEING A CASE IN WHICH WE HAVE A FOUR AND-A-HALF-YEAR-OLD WHO WAS ORPHANED BY THE LOSS OF BOTH PARENTS, WE HAVE A LESSER CASE. NONETHELESS, A PRODUCT LIABILITY CASE, BUT LET'S ASSUME, FOR THE PURPOSES OF MY HYPOTHETICAL TO THE COURT, THAT, INSTEAD OF A DEATH CASE, YOU JUST MERELY HAVE A RELATIVELY SEVERE INJURY CASE. AND IN ORDER TO MAKE THE DECISION TO UNDERTAKE THAT REPRESENTATION, IT WOULD NOT BE UNUSUAL FOR A LAWYER WHO THOUGHT THESE MATTERS THROUGH, TO SAY, TO HIMSELF, I WILL UNDERTAKE THIS CASE, AND I WILL PROVIDE ACCESS TO THE COURTS FOR THIS PARTICULAR PLAINTIFF. SO LONG AS I CAN FOLLOW THIS STRATEGY, THAT IS THAT I WILL FILE MY LAWSUIT. I WILL EVALUATE MY LAWSUIT, DURING THE FIRST 90 DAYS, FROM THE TIME THE LAWSUIT WAS FILED, UNTIL THE TIME WHERE I AM PERMITTED, UNDER RULE 1.442, TO APPLY MY OFFER OF SETTLEMENT. AT THAT POINT IN TIME, I KNOW THAT, WHEN I FILE THE OFFER OF SETTLEMENT, IT SHOULD BE IN A REASONABLE AMOUNT, WHICH GIVES AN INCENTIVE TO THE DEFENDANT TO SETTLE THE CASE AT THAT JUNCTURE.

LET ME JUST INTERRUPT YOU. IN REAL LIFE, WHERE THAT CASE IS, IS YOU ARE GOING TO COME IN AND MAKE AN OFFER OF JUDGMENT, AT THE LEVEL OF THE LIABILITY INSURANCE, SO THAT YOU CAN PUT THE OTHER SIDE IN A BAD FAITH POSITION. I MEAN, ISN'T THAT WHERE REALITY IS?

NOT IN PRODUCT LIABILITY LITIGATION, BECAUSE, GENERALLY, YOU HAVE DEEP POCKETS, WHERE THE LIMIT OF LIABILITY INSURANCE IS NOT IMPORTANT.

BUT THIS IS NOT JUST IN PRODUCTS CASES THAT WE ARE TALKING ABOUT. WE ARE TALKING ABOUT A CASE IN WHICH YOU HAVE GOT 10-20 LIABILITY POLICIES.

YOU ARE ABSOLUTELY CORRECT, IN THAT CONTEXT, BUT I DON'T THINK THAT THIS CHANGES THE BASIC IDEA BEHIND THE LAW, AND THAT IS THAT, IN COMPUTING A REASONABLE FEE FOR A PLAINTIFF PLAINTIFF'S LAWYER, IN THIS INSTANCE, OR IN THE CASE OF THE BELL CASE, A DEFENDANT, IN A COMMERCIAL CONTRACT SITUATION, THAT YOU HAVE TO TAKE INTO ACCOUNT THAT THERE ARE TREMENDOUS RISKS THAT ARE BEING ASSUMED BY THE LAWYER, WHO TAKES THE CASE ON A CONTINGENCY-FEE BASIS, BOTH IN TERMS OF NONPAYMENT AT ALL, AND IN TERMS OF THE DELAY OF PAYMENT. IT IS NOT LIKE WE CAN ISSUE OR PLAINTIFF CAN ISSUE, PLAINTIFF'S LAWYER CAN ISSUE A BILL EVERY MONTH TO THE CLIENT AND KNOW THAT THE OVERHEAD OF THE LAW FIRM IS GOING TO BE PAID. IT DOESN'T HAPPEN THAT WAY. THIS IS WHY THE COURT HAS RECOGNIZED, THROUGHOUT THE HISTORY, AND, IN FACT, WHEN WE LOOK IN THE CONTEXT OF ROWE AND QUANSTRUM. NEITHER OF THOSE WERE COMMERCIAL CASES. ONE ASH ROSE OUT OUT OF THE -- ONE A ROSE OUT OF THE FIFTH -- ONE AROSE OUT OF FIFTH STAURCKTS I BELIEVE, BUT IN CONTEXT, NONETHELESS, THE COURT REALIZED THAT THAT LAWYER IS AT GREAT RISK, IN UNDERTAKING THAT REPRESENTATION. THAT IS THE SAME KIND OF RISK, IN THE USE OF A MULTIPLIER, THAT GOES INTO THE THINKING PROCESS, IN ORDER TO GIVE ACCESS TO THE COURT FOR THAT PARTICULAR LITIGATION, WITHIN THIS CONTEXT. THAT IS THE CONTEXT OF SECTION 768.79. I AM NOT SURE THAT I HAVE ADEQUATELY ADDRESSED YOUR ISSUES.

I THINK I UNDERSTAND YOUR POINT. I DO THINK I WOULD -- MISS LUMISH IS TALKING ABOUT THE CASES THAT I WAS CONCERNED ABOUT, IN MY DISSENT IN DVORAK, WHICH IS DOESN'T THE ADDING 6 A -- ADDING AFTER MULTIPLIER, HERE, PLACE THE DEFENDANT IN AN EVEN MORE TENUOUS POSITION IN DEFENDING QUESTIONABLE LIABILITY CASES?

WELL, I REALLY DON'T THINK THAT IS THE CASE, THAT THIS IS SOMETHING THAT IS KNOWN, AT THE TIME THEY ELECT TO REJECT OR THE OTHER SIDE REJECTS -- ELECTS TO REJECT AN OFFER OF SETTLEMENT. I WOULD POINT OUT HERE THAT, IN TERMS OF THE PRACTICAL REALITIES OF THE SITUATION, AND GOING BACK TO A QUESTION THAT JUSTICE PARIENTE ASKED EARLY ON, IF YOU LOOK AT THE MATHEMATICS IN THIS CASE AND YOU APPLY -- WERE TO APPLY A STRAIGHT LODESTAR TO A DEFENSE AMOUNT OF MONEY RECEIVED FOR FEES, THE DEFENDANT COMES OUT, GENERALLY, IN THESE SITUATIONS, WHOLE. IN THIS PARTICULAR CASE, AS YOU LOOK AT THE FLORIDA STANDARD CONTRACT FOR CONTINGENT REPRESENTATION, EVEN WITH THE APPLICATION OF A TWO AND-A-HALF TIMES MULTIPLIER, THE MAXIMUM ALLOWED HERE, THE PLAINTIFF, IN THIS CASE, DID NOT COME OUT WHOLE, IN TERMS OF THE FEE AWARDED. IN FACT, THE FEE AWARDED TO THIS PLAINTIFF WAS $400,000 LESS THAN WHAT HE WAS OBLIGATED TO PAY, UNDER THE CONTRACT. I NOTICE MY TIME IS UP. THANK YOU.

THANK, MR. SMITH. REBUTTAL.

VERY QUICKLY. FIRST, JUSTICE PARIENTE, I WANT TO MAKE IT CLEAR, WE DID RAISE THIS ISSUE IN THE TRIAL COURT. IT IS AT THE SUPPLEMENTAL TRANSCRIPT, AT PAGE 110. WE, ALSO, RAISED IT IN OUR APPELLATE BRIEF, ALTHOUGH IT WAS NOT A SEPARATE ISSUE ON APPEAL. IT WAS RAISED AS PART AND PARCEL OF YOUR ARGUMENT THAT THERE WAS INCONSISTENCY BETWEEN THE TWO STATUTES, AND IF YOU ALLOW BOTH TO EXIST, THAT THERE WAS A DENIAL OF EQUAL PROTECTION, UNDER BOTH THE FLORIDA AND FEDERAL CONSTITUTION. I DON'T THINK THERE IS ANY QUESTION THAT THE ISSUE IS PROPERLY BEFORE THE COURT, BUT, OF COURSE, WE BELIEVE THAT THERE ARE A NUMBER OF ISSUES THAT THE COURT NEEDS TO ADDRESS, AND IT IS IMPORTANT THAT THE COURT LOOK AT EACH AND EVERYONE OF THEM. BECAUSE THE STATUTE HAS SPAWNED SO MUCH LITIGATION, WHEN, IN FACT, THE HOPE WAS THAT YOU WOULD END LITIGATION, SO I THINK IT IS IMPORTANT THAT WE LOOK AT ALL ISSUES.

IF WE LOOK AT THE SITUATION THAT JUSTICE PARIENTE HAS SUGGESTED. IF WE LOOK AT THE MULTIPLIER AS AN ADJUSTMENT, IF YOU WILL, TO WHATEVER THE FEE IS, AND IF THERE IS SOME ADJUSTMENT DOWNWARD, WHAT IS WRONG, PHILOSOPHICALLY, FROM APPROACHING IT FROM THAT KIND OF PERSPECTIVE, INSTEAD OF LOOKING AT THE CHANCE OF SUCCESS, AND THOSE FACTORS, IT IS JUST REVERSED IN SOME FASHION, SO THAT YOU ARE LOOKING AT IT SO THAT IT IS NOT OPERATING CONTRARY TO THE STATUTE. IS THAT IMPOSSIBLE? IS THAT PHILOSOPHICALLY --

I THINK PHILOSOPHICALLY, THEY CAN'T STAND TOGETHER, AND PART, THERE IS A NUMBER OF REASONS FOR THAT. FIRST OF ALL, THEY DON'T NECESSARILY ACT AS AN OFFSET, AND IN FACT, IN THIS CASE THEY DIDN'T ACT AS AN OFFSET, BECAUSE THE LODESTAR WAS $414,000, AND AT THE END OF THE DAY WE WERE AT $777,000, AND EVEN THOUGH THE COURT SAID I WANT TO REDUCE, UNDER THESE FACTORS IN THE STATUTE, SO AS A PRACTICAL MATTER, IT DOESN'T OFFSET, BUT MORE IMPORTANTLY, THE PROBLEM WITH IT IS THAT THE THINGS THAT YOU ARE USING TO RAISE THE AWARD ARE THE EXACT SAME FACTORS THAT YOU USED TO, THEN, LOWER THE AWARD UNDER THE STATUTE, PUTTING THEM AT ODDS WITH EACH OTHER, AND YOU ARE DOING IT IN A MANNER THAT IS REWARDING THE WRONG THING. IN OTHER WORDS YOU ARE PAYING A HIGHER AMOUNT TO COUNSEL, WHEN THEY HAD A LOWER MERIT CLAIM. NOW, THAT MAY WORK VERY WELL, IN THE CONTEXT OF A PREVAILING PARTY STATUTE, BECAUSE YOUR POINT, THERE, WAS WE WANT TO ENCOURAGE SOMEBODY TO TAKE ON THOSE CASES THAT ARE THE TOUGHER ONES.

I DON'T UNDERSTAND UROLOGIC, BECAUSE THE SUGGESTION IS THAT YOU ARE REDUCING IT DOWN, BECAUSE OF THAT. HOW ARE YOU REWARDING SOMEONE, IF YOU TAKE THE -- A JUDGMENT FACTOR AND THEN YOU ARE REDUCING IT DOWN.

BECAUSE, IN THE CASE OF A LOW MERIT CLAIM, AS WE HAD HERE, YOU ARE ENHANCING THE AWARD, BECAUSE THE MULTIPLIER SAYS, IF IT IS A LOW-MERIT CLAIM, WE RAISE THE AWARD, SO YOU ARE FIRST --

ISN'T THERE SOME LANGUAGE, THOUGH THAT, TALKS IN TERMS OF YOU CAN REDUCE IT -- YOU CAN USE IT TO REDUCE THE FACTORS? IT TALKS IN TERMS OF OTHER LANGUAGE. I CAN REDUCE IT. I CAN REDUCE THE LODESTAR, CAN I NOT?

THERE ARE, REALLY, TWO COMPONENTS, AND I THINK THIS ISSUE CAME UP IN THE BELL CASE, IN TERMS OF INDEPENDENT OF A MULTIPLIER, YOU CAN LOOK AT THE FACT THAT IT IS A CONTINGENT CLAIM, AND YOU CAN MAKE UP WARDS AND DOWNWARDS ADJUSTMENTS. IF THE LOAD STAR WAS A SIMPLE NUMBER THAT EVERYBODY COULD STAND HERE AND AGREE TO, WE WOULDN'T BE HAVING AT LEAST THE DEBATE THAT HAS GONE ON IN OTHER CASES ABOUT WHAT SHOULD THE LODESTAR NUMBER BE, SO CLEARLY THERE ARE UPWARDS AND DOWNWARDS ADJUSTMENTS THAT CAN BE MADE, INDEPENDENT OF A MULTIPLIER, THAN IS WHAT YOU ARE REFERRING TO AND WHAT, I THINK, CLEARLY YOU REFERRED TO, JUSTICE PARIENTE, THAT YOU REFERRED TO IN THE BELL CASE, BUT I DON'T THINK THAT YOU CAN SIMPLY WASH OVER THE ISSUE BY SIMPLY SAYING IF WE MAKE AN UPWARD ADJUSTMENT FOR THE MULTIPLIER AND WE MAKE A DOWNWARD ADJUSTMENT FOR THE OTHER FACTORS IN THERE, IT ALL WASHES OUT, AND SO EVERYTHING IS OKAY.

SO GOING BACK TO THAT, AND THIS IS, IF AN UNREASONABLE FEE, A HOURLY FEE OR A MARKET FEE IS $20 ON BUT A JUDGE SAYS ABSENT A MULTIPLIER, THAT, BECAUSE THIS WAS CONTINGENT, BECAUSE THERE WAS A RISK OF NONPAYMENT, I AM GOING TO ADJUST THE HOURLY FEE TO $400 AN HOUR, EVEN THOUGH THEY ARE DOING IT AND SAYING IT FOR A DIFFERENT REASON, AREN'T THEY, REALLY, GIVING A MULTIPLIER?

AS I RECALL, UNDER ROWE, THEY CAN'T ADJUST ON THE RATE FOR THE CONTINGENCY FEE, SO THEY CAN'T DO IT IN THAT MANNER. THEY CAN CONSIDER IT. FOR EXAMPLE, YOU MUST CONSIDER, IT BECAUSE THE ULTIMATE FEE CAN'T BE HIGHER THAN THE CONTINGENCY FEE CONTRACT, SO THAT IS ONE OF THE REASONS YOU LOOK AT IT. IT MAY ACTUALLY BEEN A DOWNWARD ADJUSTMENT, BUT THE PROBLEM, HERE, IS YOU ARE TAKING A SET OF CIRCUMSTANCES AND A SET OF POLICIES THAT WERE DESIGNED FOR ONE PURPOSE, WHICH IS THE PURPOSE OF ENCOURAGING LITIGATION, AND YOU ARE TAKING THAT AND ENGRAFTING IT ON A DIFFERENT STATUTE WHICH HAS AN ENTIRELY DIFFERENT PURPOSE. THAT HAS NEVER BEEN DONE, AND INCLUDING IN THE CASES REGARDING A MULTIPLIER AND THE CONTRACT, IT HASN'T BEEN DONE IN THE SET SAME SETTING, AND WHAT WE ARE SAYING IS THEY ARE, REALLY, DIFFERENT CONCEPTS, PARTICULARLY WHAT THE COURT HAS SAID ABOUT THE STATUTE, WE WOULD URGE THE COURT TO LOOK AT THE FACT THAT IT IS NOT A FEE-SHIFTING STATUTE. WE ARE TALKING ABOUT IMPOSEING A SANCTION.

YOUR TIME IS UP.

I AM SORRY. WE WOULD ASK THE COURT TO QUASH THE FIFTH DCA DECISION. THANK YOU VERY MUCH.

YOU THINK THANK YOU, COUNSEL -- THANK YOU, COUNSEL, VERY MUCH.