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PST Vans12/28/1999
nd trial of the federal court lawsuit, that assertion is hardly "undisputed"; rather it is sharply contested by the Widow, as demonstrated by the following excerpts from the Widow's brief:
Counsel for [the Widow] responsible for and did in fact do all substantive work associated with the trial of the matter.
[Prior to the time that the Daughter intervened], [the Widow] and her counsel engaged in extensive discovery and investigation regarding the accident which claimed the life of Lowell Kenneth Reed.
On July 21, 1995, after much of the investigation in the matter was concluded and after discovery was at an end, [the Daughter] filed a motion to intervene.
[The Daughter] did nothing more than hamstring the Plaintiff below in the presentation of the case.
Counsel for [the Widow] conducted all investigation in the matter, conducted all discovery, and presented all evidence at trial.
...the attorneys for [the Widow]... contributed all funds toward the expense of the complex litigation.
It is clear from these competing excerpts that the respective positions of the parties as to the contribution of the Daughter and her counsel to the securing of the judgment in the federal court action are, in fact, diametrically opposed.
VI.
We have recognized in earlier cases that the relative contributions of parties and their counsel to the securing of a single judgment, in a wrongful death action, that inures to the benefit of more than one beneficiary is an important consideration in deciding how fees and expenses should be assessed. Two unreported cases are particularly instructive. See Wheeler v. Burley, C/A No. 01A01-9701-CV-00006, 1997 WL 528801 (Tenn.Ct.App. M.S., filed August 27, 1997), and In re Estate of Stout, C/A No. 01A01-9308-CH-00360, 1994 WL 287765 (Tenn.Ct.App. W.S., filed June 29, 1994). A review of these two cases reveals the following principles concerning the proper application of the "common fund doctrine."
Generally, attorneys may look only to the clients with whom they contract for their compensation, even where a third party incidentally benefits from the work done for the client. Stout, at *3 (quoting Hobson v. First State Bank, 801 S.W.2d 807, 809 (Tenn.Ct.App. 1990)). The common fund doctrine is an exception to this general rule. Stout, at *3. The doctrine provides that "a private plaintiff, or his attorney, whose efforts create, discover, increase or preserve a fund to which others also have a claim is entitled to recover from the fund the costs of his litigation, including attorneys' fees." Id. (quoting Vincent v. Hughes Air West, Inc., 557 F.2d 759, 769 (9th Cir. 1977)). Application of the doctrine effectively spreads "litigation costs proportionately among all the beneficiaries so that the active beneficiary does not bear the entire burden alone and the `stranger' beneficiaries do not receive their benefits at no cost to themselves." Stout, at *3.
Where there are multiple claimants to a fund, each of which retains his or her own attorney to participate in the case, however, the question of whether and how the common fund doctrine should apply becomes more difficult. It cannot be said that claimants who contribute to procurement of a fund through individual effort or expense receive their benefit at no cost to themselves. Thus, the common fund doctrine is generally not applied against parties retaining their own counsel. Id., at *4, see also Wheeler, 1997 WL 528801 at *4. However, where the contribution of a "lead" plaintiff or attorney and the contribution of the objecting plaintiff or attorney are unequal, courts may apply the common fund doctrine to av
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