Liebreich v. Trial Strategies, Inc.

40 So. 3d 1, 2010 Fla. App. LEXIS 6671, 2010 WL 1927138
CourtDistrict Court of Appeal of Florida
DecidedMay 14, 2010
Docket2D08-2866
StatusPublished
Cited by1 cases

This text of 40 So. 3d 1 (Liebreich v. Trial Strategies, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liebreich v. Trial Strategies, Inc., 40 So. 3d 1, 2010 Fla. App. LEXIS 6671, 2010 WL 1927138 (Fla. Ct. App. 2010).

Opinions

ALTENBERND, Judge.

Dell Liebreich, as Personal Representative of the Estate of Lisa McPherson, appeals a final judgment awarding Trial Strategies, Inc., $72,926.06 as costs for services rendered in the Estate’s well-publicized wrongful death lawsuit against the Church of Scientology Flag Service Organization, Inc. We affirm this judgment because no preserved or fundamental error has been presented to this court that would allow us to do otherwise. Our affir-mance, however, should not prevent the Estate from seeking other remedies, including reimbursement of this amount from Dandar & Dandar, P.A., under the contingency fee agreement between them.

I. The Facts

In January 1997, Fannie McPherson and Dell Liebreich retained the law firm of [2]*2Dandar & Dandar to bring a lawsuit on behalf of the Estate against the Church of Scientology. The law firm has only two members, Kennan and Thomas Dandar, who are brothers. The Estate was told that Kennan Dandar would be the lawyer primarily responsible for this case. Fannie McPherson and Dell Liebreich signed a contingency fee agreement with Dandar & Dandar, apparently binding the Estate. The agreement called for the law firm to receive a standard percentage of any recovery as its attorneys’ fees. As to costs, the agreement states:

In further consideration of our attorneys’ promise to represent us and to expend their time in representing us, we agree to pay ANY AND ALL COSTS of investigation, expert’s fees, medical case management and other expenses incurred by the office of DANDAR & DANDAR, A PROFESSIONAL ASSOCIATION, their staff, court costs, photographs, and mailing expenses, in order to properly represent us in the pursuit of our claim. We further understand that we are obligated to pay these costs whether or not our claim is successful. This Agreement on the undersigneds’ part is pursuant to the rules of ethics established by the Florida Bar and the Florida Supreme Court.

The lawsuit was filed in February and soon mushroomed into an extensive piece of litigation. The law firm did not add any additional lawyers or paralegals to the firm to work on this case. In June 1998, however, the law firm retained the services of Dr. Michael Garko, who has a Ph.D. in communications. He held himself out as an expert trial and jury consultant, although his background, training, and expertise in this area seem rather limited.

The law firm had Dr. Garko sign a confidentiality agreement under which he agreed to conduct no press conferences or write any books about the lawsuit without the express written authorization of Kennan G. Dandar, attorney for the Estate of Lisa McPherson. Neither the Estate nor the law firm entered into any written contract with Dr. Garko pertaining to his services. The initial oral understanding between Dr. Garko and Kennan Dandar was that Dr. Garko would work on the case about twenty hours a week for a monthly retainer of $5000. Dr. Garko claimed that, over and above the retainer, Kennan Dan-dar agreed to pay him $250 per hour. By August 1999, the two men had concluded that Dr. Garko’s services were required full time. From that point on, Dr. Garko charged a monthly retainer of $8000 and believed he was entitled to an additional $200 for each hour he worked on the case. This understanding was not reduced to a written contract, but Dr. Garko provided a written memorandum to Kennan Dandar stating the terms of their oral agreement. At some point, Dr. Garko created Trial Strategies, Inc. (TSI), as a corporation through which he provided these services.

The record on appeal establishes that Dr. Garko spent a great deal of time working or thinking about this lawsuit. He attended depositions and hearings. He prepared extensive lists of questions to be asked at depositions. He read transcripts and tried to assess the strengths and weaknesses of various witnesses. He worked to organize the expert witnesses who might be used at trial. At least from the view of this appellate court, there is no question that Dr. Garko worked extensively on this case, but his work looks like the product of a paralegal or young associate attorney. There is little or no documentation in this file that Dr. Garko performed the more narrow and specialized work of a jury consultant. He appears to have been a “trial consultant” who was performing many tasks that are normally performed [3]*3by attorneys and paralegals who are working to earn a contingency fee.

Over the course of their collaboration, the law firm did not always pay Dr. Garko or TSI the monthly retainer, and there appears to be no evidence that it ever paid an additional hourly rate. It is, however, undisputed that the law firm paid Dr. Gar-ko or TSI $160,000. After August 2001, Dr. Garko testified that Kennan Dandar did not pay him or TSI and told him that there was no available money to pay for his services.

The relationship between Dr. Garko and the law firm collapsed in the spring of 2002. At that time, Dr. Garko discovered that a third party was providing extensive money to the law firm to underwrite this legal action. Dr. Garko testified that he was very upset about being lied to about the law firm’s ability to pay him. Kennan Dandar and Dr. Garko appear to disagree about whether Dr. Garko resigned or was fired, but Dr. Garko retained an attorney and sent a letter stating that he had terminated his services. It enclosed an invoice from TSI to Dandar & Dandar for $38,266.66 for unpaid retainers for the period between September 2001 and June 2002. Dandar & Dandar did not respond to this invoice.

In May 2004, the legal action between the Estate and the Church of Scientology settled. Three months later, TSI brought an adversary proceeding in the probate court seeking $1,280,000 in unpaid fees. In describing the services rendered by Dr. Garko, the petition to award costs alleges:

Dr. Garko provided a wide range of trial and jury consulting services to the Estate. Beginning in June of 1998 through June of 2002, Dr. Garko (1) prepared to conduct pretrial jury research (e.g., focus groups, mock trials, public opinion surveys), (2) attended and assisted Dandar at virtually all depositions in and outside of Florida (including depositions held in Los Angeles, Portland, Mexico City, Minneapolis & Washington, D.C.), (3) attended and assisted Dandar at virtually all hearings in the Death Lawsuit, (4) attended and assisted in the mediation of the case and (5) encouraged, originated and conducted talks with attorneys for the Church of Scientology Flag Service Organization in an effort to reach a settlement in the case. Additionally, Dr.

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Related

Liebreich v. Trial Strategies, Inc.
40 So. 3d 1 (District Court of Appeal of Florida, 2010)

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Bluebook (online)
40 So. 3d 1, 2010 Fla. App. LEXIS 6671, 2010 WL 1927138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liebreich-v-trial-strategies-inc-fladistctapp-2010.