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Duffy v. Circuit Court For the Seventh Judicial Circuit2/11/2004
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(8) the possible punishment involved.
We gave further direction in Kelley on how to consider the factors starting by considering the time spent on the case. We said that no single factor should control:
The fee should not be based on any one single factor but all of these matters should be taken into consideration. The only requirement is that the fee which the court fixes in each case must be reasonable for the services rendered.
Kelley, 513 NW2d at 111 (citing City of Bismarck v. Thom, 261 NW2d 640, 642 (ND 1977) (quoting Morton County Board of Park Comm'nrs v. Wetsch, 136 NW2d 158 (ND 1965))). We directed in Kelley that calculation of the fees must start with multiplying the attorney's hours and the typical hourly fees but explained:
We are not under the illusion that a 'just and adequate' fee can necessarily be ascertained by merely multiplying attorney's hours and typical hourly fees. However, we are convinced that this simple mathematical exercise is the only legitimate starting point for analysis. It is only after such a calculation that other, less objective factors, can be introduced into the calculus.
Kelley, 513 NW2d at 112.
. Additionally, the trial court is entitled to look at the case as a whole in light of the calculations and factors. The trial court in using its independent judgment must acknowledge the "high standard of diligence and preparation which is demanded of counsel in criminal cases." Hulse, 306 NW2d at 710. Although a court has the benefit of hindsight, it should not overlook the attorney's perspective in preparing for the case. Id. at 709.
Trial Court Required to Explain Reasons for Reducing Fees
. The trial court is required by rule to "explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel." Supra at n9. In other attorney fees cases, we have required the trial court to make specific findings based on the factors. Hoffman v. Olsen, 2003 SD 26, , 658 NW2d 790, 793; Ridley v. Lawrence County Com'n, 2000 SD 143, , 619 NW2d 254, 259; Michlitsch v. Meyer, 1999 SD 69, , 594 NW2d 731, 735; Pengra v. Pengra, 429 NW2d 754, 757 (SD 1988). Counsel is responsible for providing an itemized statement in order for the courts to review the charges; the court, in turn, should articulate its rationale for reducing the fee either by specific findings or a clear explanation addressing each of the reasonableness factors. See State v. Sidney, 225 NW2d 438 (Wis 1975).
Whether the Court Applied the Correct Legal Standard in Reducing Fees
. Therefore, in determining whether a trial court "has regularly pursued its authority," we examine if the court applied an incorrect legal standard or whether the court abused its discretion to the extent that it acted illegally in setting the amount. The attorney is entitled to "just and reasonable" compensation. The judge determines whether it is "just and reasonable." In applying the correct legal standard, the court is required to explain orally or in writing the reasons for modifying the attorney's submitted voucher considering the factors enumerated in this opinion. The attorney has the burden of proof to show that the trial court applied the incorrect legal standard or acted illegally in setting the amount.
. In two of Duffy's court appointed cases, her client, Kathryn Little was charged with two counts of felony child abuse. The two cases were assigned to Judge Kern. Little was also named as the respondent in an Abuse and Neglect petition over which Judge Davis presided. Little was severely mentally ill with severe borderline persona
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