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Complex wrongful-death legal fee appeal puzzles judges

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Judges on a panel of the Indiana Court of Appeals were stumped at times Friday in a case regarding legal fees due from the Indiana Patient’s Compensation Fund to the estate of a woman who won a wrongful death judgment after she died from burns at a care facility.

“You’ve basically just lost me,” Judge Melissa May said at one point to attorney Dan Robinson, who sought to explain why the estate should receive $50,440 in attorney fees from the PCF as was ordered by a Marion Superior judge. Robinson, a member of Gray Robinson Ryan & Fox P.C. in Indianapolis, represents the adult children of the estate of Mable Cochran in Indiana Patient’s Compensation Fund v. Judy Holcomb, 49A05-1207-CC-340. Watch the oral argument here.

Susan Cline, a Lewis Wagner LLP partner representing the Patient’s Compensation Fund, argued that legal fees awarded from the fund are clearly capped at 15 percent of total damages under I.C. 34-18-18-1.
 
“The Patient Compensation Fund asks that this case be remanded back to the trial court,” Cline said, with an order for damages for legal fees reduced to $17,852.

Beyond the $250,000 policy coverage limit, the estate also was entitled to $101,166.89 from the PCF based on provisions of a settlement, which the fund paid. Attorneys took a fee of 40 percent from that amount, pursuant to their contract with the client, according to testimony. Robinson told the judges the legal fees of $50,440 from the fund would go directly to the estate.

Judge Rudy Pyle III and Chief Judge Margret Robb also appeared to wrestle with the conflicting formulas for legal fee awards from the fund and whether the 15 percent cap should apply. Cline acknowledged that a formula proposed for awarding legal fees from the fund wasn’t found in statutes, but represented an attempt to reconcile recent caselaw with statutes.

But Robinson and Johnson Jensen LLP attorney Robert W. Johnson, representing the Indiana Trial Lawyers Association, argued that the award was justified under the adult wrongful death statute, I.C. 34-23-1-2. The fee would have been subject to the 15 percent cap under medical malpractice statutes, he said.

“Attorney fees as damages are totally different from what the attorney charges his client,” Johnson said. He noted estates are afforded protections from excessive legal fees through probate court.

But Cline warned that allowing the lower court award of legal fees to stand could create unforeseen hardships for the fund. “You create the windfall with no place to go.”

Struggling to find the heart of the case, Robb seemed to reach an epiphany at one point in the oral arguments that ran about 20 minutes longer than the time typically granted. She quipped, “It’s clear as mud, now.”

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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