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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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