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Demystifying Attorney Fees on Appeal: A Basic Overview, Part One: How to Request Appellate Attorney Fees at the Colorado Court of Appeals

When on appeal, either because you are convinced the district court got it wrong or are begrudgingly defending a judgment in your favor, you may wonder if attorney fees are available for an appeal. Part One of this series outlines the general procedural requirements of requesting attorney fees at the Colorado Court of Appeals.

Follow the Rule for Requesting Appellate Attorney Fees at the Colorado Court of Appeals.

Requesting attorney fees at the Court of Appeals is relatively straightforward, yet litigants often make mistakes when doing so. Colorado Appellate Rule 39.1 provides the procedure parties must follow in order to request attorney fees on appeal:

If attorney fees are recoverable for the appeal, the principal brief of the party claiming attorney fees must include a specific request, and explain the legal and factual basis, for an award of attorney fees. Any opposition to a request for attorney fees, and the legal and factual basis for the opposition, must be set forth in either the answer or reply brief, as appropriate. In its discretion, the appellate court may determine entitlement to and the amount of an award of attorney fees for the appeal, or may remand those determinations to the lower court or tribunal.

A Specific Request Must be Made in the Moving Party’s Principal Brief.

First, C.A.R. 39.1 instructs that, if attorney fees on appeal are sought, a specific request must be made in the party’s principal brief. For the appellant, this means that the request for appellate attorney fees must be made in the Opening Brief, not in a motion or in reply. For the appellee, this likely means a request in the Answer Brief.

The Request Must Include the Legal and the Factual Basis for the Fee Award.

Next, the rule requires the requesting party to include the legal and factual basis for an award of appellate attorney fees. This is perhaps the part of the rule that trips up most attorneys. This is because attorneys will often include a request for appellate attorney fees as an afterthought at the end of the brief. However, simply noting something to the effect of “Appellant respectfully requests this court award attorney fees and costs on appeal pursuant to section 13-7-102, C.R.S. 2016,” is not enough. As the Court has noted, “A request which merely identifies the statute under which fees are requested, without stating the specific grounds that justify an award of fees, does not adequately comply with [C.A.R. 39.1]” Instead, if you want the Court to take your request for attorney fees seriously, treat the request for attorney fees just like one of your arguments on appeal. Set out the request and identify the legal basis for the request. Cite to and explain any applicable case law interpreting the statutory basis for the award, for example. Then, apply the law to the facts of the case, explaining to the panel why the legal grounds for an award are met by the facts at hand.

If the Court Grants your Request. . .

If the Court of Appeals determines that attorney fees on appeal should be awarded, be prepared for the case to be remanded to the district court to determine the amount of the award. An award of attorney fees usually requires findings about whether the fees were reasonable, and may even require expert testimony. Appellate courts are not used to being “fact-finders,” and even though C.A.R. 39.1 permits the appellate court to determine both the entitlement to, and amount of, the award, it is normal for them to leave the actual numbers to the lower court.

Give Appellate Attorney Fee Requests the Time They Deserve.

An award of attorney fees on appeal should not be treated as an afterthought. Without fully developing your argument as to why these fees should be granted, do not expect the Court to take the request seriously. If you have a reasonable basis for requesting fees, be sure to follow the applicable procedure and spend the time to adequately develop the argument in the brief.

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