Johnson v. Jeppe

WARREN, J.,

concurring.

I agree with the result in this case. I disagree, however, with the majority’s conclusion that parties to a contract providing for reasonable attorney fees in the event of litigation have agreed to more than reasonable attorney fees for services actually rendered at the time of the hearing. The majority recognizes that it is difficult to ascertain the reasonable value of services before they are rendered. The difficulty, in my view, is that whether such services will be rendered and their value is dependent on facts that have not occurred. The testimony to support an award of fees for services yet to be rendered will necessarily be speculative, as will any evidence to challenge the request for fees.

As a policy matter I would not allow attorney fees for services before they have been rendered.