In my experience on Florida's Gulf Coast, this question is usually one of the first questions a client asks her attorney at the initial consultation. It seems fair to most reasonable people that if you are involved in litigation and you win, then the person who lost should have to pay your lawyers. However, this is not the rule in the United States, although it is in other countries.
Under the "American Rule" each party to a case is responsible for the payment of their respective attorneys. There are certain types of cases where an attorney may agree to take a percentage of any money recovered, and this payment arrangement is known as a "contingency fee", because the payment of the lawyer is contingent upon winning. These cases usually involve personal injury, i.e., car crash, slip and fall, etc. The focus of this article is recouping your attorney fees in the normal/non-contingency fee case.
In Florida, there are two primary methods to recover your attorney fees from the person you are suing, or from the person who is suing you. The first method is by contract.
Recovering Attorney Fees By Contract
Often times a plaintiff will sue a defendant for breaching a written contract. Many, if not most, contracts have an attorney fees provision. Although each attorney fee provision in each contract will be different, these provisions usually state that the prevailing party in any litigation is entitled to recover its attorney fees from the non-prevailing party.
Who "prevailed" in litigation can often be the subject of dispute, but for the sake of this article assume there was a one total winner in the case and one total loser in the case. Upon receiving a favorable judgment in the underlying case, the winner would then make a motion in writing to the court asking the loser to pay the winner's attorney fees.
Can You Sue for Attorney Fees?
In Florida, you can sue for attorney fees in certain situations. There are certain laws that allow a party suing for a violation of the law to recover their attorney fees from the violating party. These statutes are not exclusive to any particular area of the law, and your attorney will examine the law and your case to determine if statutory attorney fees are available.
There are also sub-genres of statutory attorney fees. These sub-genres are statutes that allow you to acquire entitlement to attorney fees after litigation has commenced. For example, when a lawsuit is filed against you without reasonable legal justification you may be able to recover your attorney fees by complying section 57.105 of the Florida Statutes. Although more is involved than this article will allow, you essentially put the other side on notice that their lawsuit is without legal justification and that the lawsuit should be withdrawn. If the lawsuit is not withdrawn and you prevail in the lawsuit, you may be able to recoup your attorney fees from the date you put the other side on notice upon proving the lawsuit was without legal justification.
Similarly, you may be able to recover your attorney fees if you make an offer to settle the case pursuant to certain Florida statutes. If the offer is not accepted, you ultimately prevail in the case, and the offer is within a certain percentage of the ultimate judgment; the other side may have to pay your attorney fees.
These are a few of the methods for recouping attorney fees that clients may want to discuss with their attorneys.