In the U.S. justice system, each side pays its own attorney. This is unlike most countries in Continental Europe, for example, where the loser pays the winner’s fees.
This can create injustice to both plaintiffs and defendants. From a plaintiff’s perspective, who is to say that someone is not “hurt enough” to sue because they would only recover a small portion of what it will cost to go through trial? And for defendants, the cost of attorneys’ fees is the motivation for so-called nuisance lawsuits, where someone with a weak case sues a company in hope of obtaining a small settlement, thinking the defendant will prefer to pay a little in ransom than a lot in defense.
There are a few statutes, however, that derogate from that American pay-your-own-way habit and offer prevailing parties their attorneys’ fees back from the losing side. Frivolous actions are one such case, both for frivolous lawsuits and frivolous appeals. But the hurdle is high. An action is frivolous only if it has no basis in fact or law.
Even when fees are provided by topic-specific statutes, the fees provisions vary greatly. Civil rights and some consumer protection statutes contain attorneys’ fees clauses, but sometimes only if the plaintiff wins, and sometimes for either prevailing party. Differences come in other forms, too. Some provisions, for example, provide for attorney fees only if the other sides behaves nearly frivolously – a power that most courts have regardless of statutes. Others add attorneys’ fees to the award simply for prevailing. Yet others fall in the middle, awarding fees when certain conditions are met.
Even though it does not seem like this to many attorneys who routinely have to counsel their clients on the costs of lawsuits, the list is actually long. Some (but not all) forms of fraud can qualify, derivative actions by shareholders against corporate management, some real estate matters like lien enforcement or partition, though the latter will only bring in part of the fees, and some landlord-tenant actions, are but a few examples.
With all that, the most common source for an award of attorneys’ fees are contracts that provide for the prevailing party to be reimbursed its fees. In that regard, Florida has a unique law. Even if a contract says that only one party could recover its fees, the contract is rewritten by statute to provide for fees to be awarded to any prevailing party.
All this creates ever more complexity in law, requiring the skillful lawyer to navigate with his clients through the turbulent waters of litigation and appeals.