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PST Vans12/28/1999
icable principles of the common fund doctrine, the trial court had to make a number of factual determinations, the most important of which were the extent of the involvement of the Sobieski law firm in the securing of the judgment and the reasonableness of the litigation and associated expenses of the Widow. The threshold determination for us is whether the evidence preponderates against the trial court's express factual determinations with respect to the fees and expenses presented by the Nicholson law firm and the trial court's implied factual determination that the work performed by the Sobieski law firm did not contribute to the judgment in the wrongful death case in a way which would require a different disposition of the judgment proceeds under the Stout and Wheeler opinions.
In order to test the trial court's factual determinations under our well-established standard of review, we must review the record to search for the preponderance of the evidence. The portion of the record formerly referred to as the technical record includes the Notice of Attorney's Lien filed by the Nicholson law firm, supported by a detailed listing of the litigation and associated expenses in the revised amount of $103,215.32. Supporting bills and checks take up some 190 pages of the technical record. Also included in the technical record are the Widow's answers, under oath, to 26 interrogatories and requests to produce. These responses pertain to her fee contract with the Nicholson law firm and her claimed expenses of $103,215.32.
In response to the Widow's filings, Ms. Sobieski filed her affidavit stating that she represented the Daughter; that she was a member in good standing of the Knoxville Bar; that her standard hourly rate was $135.00; that " he attached statements represent a true and accurate assessment of attorney's fees and expenses in this case"; that the fees and expenses were reasonable under the circumstances; that her total fees as of January 24, 1999, were $21,447.50 "for 225.50 hours at an effective rate of [$]95.11"; that her expenses were $645.27 as of January 24, 1999; that she was due finance charges of $5,802.05 as of January 24, 1999; and that her total entitlement was $27,894.82 as of January 24, 1999. While the affidavit refers to "attached statements," there are none in the record.
There is a serious deficiency in this record -- we do not have Ms. Sobieski's "attached statements" and, more importantly, we do not have a transcript or statement of the evidence from the critical hearing before the trial court on January 26, 1999. The court's memorandum opinion reflects that the court "carefully reviewed all of the data of record in this case." This presumably includes all of the material presently in the technical record. Significantly, the memorandum opinion also recites that the trial court "heard oral argument." While, generally speaking, argument of counsel is not considered evidence, see State v. Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App. 1988), that is not the case here. This is because the attorneys who presented argument were the ones who knew best what each law firm did in the wrongful death litigation. As officers of the court, they had a professional responsibility to truthfully state the facts that were within their personal knowledge on the critical subject of who did what and when. In this respect, they were factual witnesses, and it seems beyond doubt that their statements in argument were received by the trial court as evidence on these significant factual matters. In any event, there is certainly nothing in the record now before us to substantiate the Daughter's apparent claim that her attorneys performed valuable services that contributed to the securing of th
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