Almost everyone that goes into a lawsuit wants to know if they can win their attorney’s fees if they win their case. After all, who wouldn’t want their attorney’s fees covered? 


As a business litigation law firm in Florida, we are often asked this question by clients. Like most legal topics, the answer is not a straightforward yes or no. In this article, we will be explaining the different situations in which you may be able to recover attorney’s fees. 


The Default Rule or the “American” Rule 

In Florida and most other jurisdictions in the United States, the responsibility to pay attorney’s fees falls on each respective party, this is known as the “American” or default rule. The default rule requires each party, no matter if they won or not, to pay their own attorney’s fees. 


As usual, there are some exceptions to the default rule that allows for the “prevailing party” to recover their attorney’s fees from the opposing side.  Let’s discuss the three main exceptions to the default rule. 


Exceptions to the Default Rule  

There are three main exceptions to Florida’s default rule that do allow for the winning party to not have to pay their attorney’s fee and to recover these fees from the other side. 


1. An applicable statute shifts the fees 


When you file a lawsuit in Florida, you may be asserting a statutory claim, common law claim, or maybe a combination of them both.  


Certain statutes provide for the prevailing party to recover their attorney’s fee from the non-prevailing party. Some of these fee-shifting statutes may include: the Florida Deceptive and Unfair Trade Practices Act, the Florida Uniform Trade Secrets Act, the Florida Civil Theft Statute, and the Restraint of Trade/Restrictive Covenant statute. 


2. A contract shifts the fees 


Oftentimes, litigation involves a contractual dispute. In contractual disputes, the terms of the contract dictate the relationships and obligations of each party to the other. It is not uncommon for contracts to contain language that provides for the prevailing party in any contract dispute to recover their attorneys’ fees and costs from the non-prevailing party.   


3. A rule of procedure shifts the fees 


The last exception to Florida’s default rule applies to litigation that was not allowed the opportunity to recover attorney’s fees by statute or contact but rather by rule. Oftentimes, these rules can be used to the advantage of one party to increase negotiating leverage during litigation. 


For example, when a party to litigation has abused the rules of discovery or other court rules, the party may be sanctioned and compelled to pay the other party’s attorneys’ fees.  Likewise, if the court finds that a claim or defense asserted is frivolous (without legal or factual support), the offending party may be sanctioned and compelled to pay the opposing party’s attorneys’ fees. 


Recovering Your Attorney’s Fees

If a party is seeking an award of attorneys fees pursuant to statute or contract, the request should be included in the party’s initial pleadings.  The dispute is then litigated until the statutory or contractual claim is adjudicated.       


1. Determining Entitlement to Recover Attorney’s Fees


Once the claim is adjudicated, the prevailing party will need to file a motion to determine their entitlement to the recovery of the attorney’s fees. Additionally, upon a party’s violation of a court rule giving rise to a fee claim, the other party will file a motion for award of attorneys’ fees and seek the court’s deterimation of entitlement.  The court will then look to find if the party is entitled to an award of fees under the applicable statute, contract, or rule. If they are, the court will grant the motion, which will lead to a second evidentiary hearing. 


2.  Determining the Amount of an Attorney’s Fee Award


Once the court has determined entitlement, it will hold a second hearing at which evidence is presented as to the amount of fees incurred and the reasonableness of the amount of fees to be awarded.  This often includes factual evidence on the amount of fees, as well as the testimony of expert witnesses who are local attorneys that can give an opinion on the reasonableness of the requested fee award.  Both the rate charged and the time spent must be reasonable.   


Once this is done, the court will award reasonable attorney’s fees and the amount will either be added to the plaintiff’s judgment, or a separate attorney’s fee judgment is entered against the losing party. 


Contact The Frazer Firm About Your Business Litigation Dispute Today  

Every legal matter is unique. The information presented above is simply a general outline, but of course, each case going through litigation needs to be reviewed and discussed to see if it meets the exceptions to the default rule.  


If you are interested in learning more about how to recover your attorney’s fees in your business litigation case, make sure you contact the experienced business attorneys at The Frazer Firm at (561) 295-1551 for a free consultation.


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