Does the Losing Side Pay my Attorney’s Fees?

Broadly speaking, there are two approaches to the payment of the winning, or “prevailing,” party’s attorney’s fees at the conclusion of a civil litigation suit.

The “English Rule”

In some other countries outside of the U.S., courts recognize and apply the “English Rule” for determining responsibility for attorney’s fees: the losing party will usually pay the prevailing party’s fees.

The “American Rule”

In contrast, U.S. courts generally apply the “American Rule” for attorney’s fees. This is a rule in the U.S. system that two opposing sides in a lawsuit must each pay their own attorney fees, regardless of who actually wins the case.

Florida

However, there is a reason that we say the above rules “generally” apply. Exceptions to the rule are found – and Florida recognizes key exceptions to the American Rule. For example, Florida requires the losing party in a lawsuit to pay the winning party’s attorney’s fees when a statute or contract states that the prevailing party is entitled to recover its attorney’s fees from the losing party. The attorney’s fees must be deemed “reasonable,” and case law has developed to help guide a determination on whether the requested fee can all be demanded from the losing party.

Florida generally follows the federal “lodestar” approach in calculating what would be a reasonable fee. Under the lodestar approach the courts consider several criteria, including (but not limited to):

(1) The time and labor required, the novelty and difficulty of the question litigated, and the skill required to perform the service.

(2) The likelihood that acceptance of the employment precluded other employment by the attorney.

(3) The customary fee charged in the area for similar work.

(4) The amount of work involved and the subsequent result.

(5) Any time limitations.

Nationwide, courts consistently highlight the importance of lawyers accurately recording the time they spend on cases. Lawyers generally charge clients based on the time it takes to work their case. The amount of time expended on a task can be examined by the court for them to analyze whether the work expended on a given task was, in fact, reasonable. To maximize attorney’s fees received, the prevailing party in a lawsuit should present detailed records to the court itemizing the tasks performed and time spent. Even if supported by the record, the courts may choose to reduce the hours the losing party is to cover for the prevailing party if the court deems the number of hours spent to be unnecessary.

Recent Supreme Court Case

The Supreme Court recently issued a decision that could have impacts on attorney’s fees for certain cases. That court ruled, in a 7-2 decision, on a case where parties were challenging a state law – but during the course of the lawsuit, the state repealed the law at issue. The parties who brought suit sought to have their attorney’s fees paid. The Supreme Court stated that because there was no final judgement conclusively granting relief on the merits of the claim, the parties were not entitled to attorney’s fees under the federal fee-shifting statute 42 U.S.C. 1988.

It is still too early to say for certain how this could affect some suits moving forward, though it will likely encourage some litigants to push their cases further – seeking a final judgement in order to get those attorneys fees paid. On the other hand, some parties may hesitate to bring suit at all, in fear that they will not recover any attorney’s fees.

Contact Suncoast Civil Law

If you are involved in a civil litigation matter, the experienced Sarasota civil litigation attorneys at Suncoast Civil Law are ready, willing and able to assist. Whether your case revolves around business matters, probate, foreclosure, or any other civil matter, contact our office today to begin discussing your next steps in any potential civil litigation.

Source:

jdsupra.com/legalnews/scotus-makes-it-harder-for-plaintiffs-6967331/