There’s no doubt about it, litigation is expensive. But one of the potential benefits of “winning” a lawsuit in Florida is recovery of attorney’s fees. Under the “American Rule,” courts here can and do award attorney’s fees to the prevailing party – but only in certain circumstances. In this article, we’ll take a closer look at this issue.
The “American Rule” recognized by Florida courts stipulates that litigants are responsible for paying their own attorney’s fees unless there is legislation that specifies otherwise. With this in mind, our courts have consistently ruled that parties involved in lawsuits can’t recoup these fees unless there is a statue or contractual stipulation that allows them to do so.
Luckily, there are lots of provisions within our state laws that allow for the reimbursement of attorney’s fees. Here are just a few:
- Section 57.115, Florida Statutes: Execution on Judgments
- Section 59.46, Florida Statutes: Appeals
- Section 68.065, Florida Statutes: Dishonored Checks
- Section 77.28, Florida Statutes: Garnishment Actions
- Section 501.2105, Florida Statutes: FDUTPA
- Section 607.07401, Florida Statutes: Shareholder Derivative Actions
- Section 701.04, Florida Statutes: Failure to Satisfy Mortgage
- Section 713.29, Florida Statutes: Construction Liens
The bad news, however, is that just because you sue someone under one of these statutes – or any other that allows for reimbursement of attorney’s fees – doesn’t mean the court will automatically award them. In fact, you won’t get anything at all if you don’t ask. Specifically, you must make a formal request for an award of attorney’s fees, usually in a legal document filed with the court called a pleading.
Secondly, it is essential that your attorney keep sufficient records of the costs and fees incurred that have been passed on to you. This is because courts won’t award attorney’s fees if there are no records to substantiate them. Even if your attorney charged a flat fee, he or she must provide documentation as to the number of hours he or she devoted to your case.
Even if you have a contract containing a generic stipulation pertaining to attorney’s fees, you may not be able to recover the entire amount. In fact, Florida courts do not usually allow for the reimbursement of fees expended in litigating or quantifying the amount of recoverable fees (“fees for fees”) or award nontaxable costs in cases with “standard” contractual language.
Finally, there is the matter of how the “prevailing party” is identified. In a legal context, this is the person (plaintiff or defendant) who makes successful arguments pertaining to the key issues in the case and receives the benefits he or she is seeking. In most cases, the court awards the reimbursement of attorney’s fees to this person.
But what happens if one person wins the argument on one point and another wins another key argument? In these circumstances, the court will use a so-called “balancing test” to decide how the attorney’s fees should be distributed. There can even be scenarios in which both parties “prevail.” In these circumstances, the court may order the person with greater liability for attorney’s fees to pay the difference between each party’s fees to the other party.
Clearly, this is a complex area of the law. If you are involved in litigation in the Fort Lauderdale area and you are seeking an award for attorney’s fees, it’s important that you understand how courts make these decisions. If you or your business are involved in litigation in Florida, it’s also important to select a law firm that will aggressively seek recovery of your attorney’s fees. Contact the knowledgeable, experienced business attorneys at Eskander Loshak LLP to learn more today.