As a litigator who handles disputes over property, money, inheritances, and business, I often encounter clients who come into my office with the mistaken belief that they will automatically recover their attorneys’ fees if they win their case. A common misconception of the law among non-lawyers is that the losing party has to pay the winning party’s attorneys’ fees. Unfortunately, the right to recover attorneys’ fees is the exception and not the rule.
Generally speaking, the winner can only recover attorneys’ fees if the right to recover fees is provided for by a statute or contract. This can be difficult for clients to understand, as they often hear that the purpose of the civil courts is to make a wronged party “whole.”
Now that you know that the recovery of attorneys’ fees is the exception and not the rule, how can you better protect yourself now and in the event of a dispute? If you are a business owner or professional who provides goods or services, one way to be proactive in protecting yourself is to ensure that all of your contracts contain a prevailing party attorney provision. The wording of these provisions is critical, as there are instances where the courts have found no right to recover fees despite the existence of contractual language that appears to provide for as much. For example, courts have found that the contractual right to recover “legal costs” does not include the right to recover attorneys’ fees.
If you are already in a dispute and are not certain whether you have the right to recover your attorneys’ fees if you win, we are glad to consult with you about your case. There are many Florida and federal statutes that provide for the recovery of attorneys’ fees in myriad situations. For example, there is a right to recover attorneys’ fees in consumer warranty claims under a federal statute even if the case is brought in state court, and a Florida statute allows for recovery attorneys’ fees arising from deceptive and unfair trade practices. There are also Florida statutes which allow for attorneys’ fees to be recovered based on a party’s conduct in litigation, including as sanctions for bringing a frivolous claim or defense or for a party’s refusal to accept a reasonable settlement offer if the judgment obtained by the winner ultimately “beats” that offer by a certain amount.
One of the first things I discuss with my clients is whether they have the right to recover attorneys’ fees, as that can factor into the strategy of how to approach a case. If a client does not have a contractual or statutory right to recover attorneys’ fees, we always need to consider whether the client is likely to spend more litigating a case than she stands to recover. In this situation, it may not make sense for the client to “throw good money after bad.”
Whether you are uncertain of your rights under your existing contracts (or worse yet, you are doing business without contracts) or you are in a dispute, we can help you determine and advocate for your rights. Please contact us to set up a consultation.