Clients often ask me whether they can recover their attorney’s fees associated with resolving a dispute. I hear this question both from clients that are trying to pursue a claim and from clients that are defending against a claim that has been made against them. The American Rule is that each party to a dispute is expected to pay their own attorney’s fees and related litigation expenses. However, there are a host of statutes that sometimes shift the responsibility to pay attorney’s fees to the other party.
By way of example only, certain civil rights laws and wage laws provide that a winning party may recover attorney’s fees and litigation expenses from the other party. In some instances, a fee award to the winning party may even be mandatory. In Georgia, a party can be required to pay the other party’s attorney’s fees if a court concludes that the party has somehow abused the litigation process, such as by asserting a meritless claim purely for the purpose of harassment. Other states may have similar types of attorney fee statutes.
Regardless of what type of claim is being pursued, the attorney’s fee statutes all seem to share some common requirements.
First, the party that is trying to obtain a fee award must win. The party must win their claim, or win their motion, to have a chance at recovering an award of attorney’s fees from the other party.
Second, the party that is trying to recover attorney’s fees must be able to identify a law that supports an award of attorney’s fees in their situation, and they must be able to demonstrate to the court’s satisfaction that all requirements for the award of attorney’s fees under such a law have been met. Some types of claims mandate an award of attorney’s fees in certain situations. For that type of attorney fee award, the party must show that the required situation has arisen. Other types of claims authorize – but don’t require – an award of attorney’s fees in certain situations. In those cases, the decision whether to award any fees is in the hands of either a judge or a jury. The party trying to recover attorney’s fees must convince the judge or jury that fees are warranted under the applicable law.
Third, the party must be able to prove the amount of attorney’s fees earned. This generally requires that the party show what the attorney did to earn the fee; how much time the attorney devoted to the effort; the attorney’s level of experience in similar types of matters; and the value of the attorney’s efforts.
It is important to remember that, even where the law requires an award of attorney’s fees, or where a judge or jury has agreed that attorney’s fees are warranted where they are authorized, the actual amount of the award will be unpredictable. A party might spent $50,000 on attorney’s fees related to a claim, yet only receive an award of $10,000 in attorney’s fees, because the judge or jury only values the attorney’s services in that amount.
Bottom line: When clients ask me whether they can recover attorney’s fees from the other party in connection with a matter, my answer is generally “it depends”. The answer to this question can be complex and will be governed by the specific facts of the situation and the applicable law. Counsel should always be consulted for advice regarding the possible recovery of attorney’s fees and litigation expenses in a specific situation.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.