When someone is considering filing a lawsuit, they often want to know whether they will be able to recover their attorneys’ fees from their opponent if they prevail in the lawsuit. Under Florida Law, the general rule is that each participant in litigation is responsible for paying their own attorneys’ fees, and they cannot recover their attorneys’ fees from the non-prevailing party.
However, there are two main exceptions to this rule, which are that the prevailing party in litigation may recover at least a portion of their attorneys’ fees from the non-prevailing party: (1) if the litigation is based on a contract that provides that the prevailing party in any litigation based on the contract is entitled to recover their attorneys’ fees; and (2) if the litigation is based on a statute that provides for prevailing-party attorneys’ fees.
In addition to having a legal basis for the recovery of attorneys’ fees, there are a few additional, procedural steps that you must follow in order to recover attorneys’ fees. First, your Complaint or Petition, which is the document that you file with the Court to initiate the lawsuit, should contain a claim for attorneys’ fees. If you do not claim in your pleadings that you are entitled to recover attorneys’ fees, then you risk waiving your right to recover fees, even if you have a valid legal basis for doing so. Best practice is to include such a claim in your initial pleading, and to expressly set forth the basis for such claim. The best way to do this would be to specifically cite to the contract provision or statutory provision that creates your entitlement to an award of attorneys’ fees.
Next, in order to recover attorneys’ fees under the terms of a prevailing-party attorney fee provision, you must prevail in the lawsuit. This sounds simple, and often it is. However, in many lawsuits there are lots of different issues, in which case the Plaintiff may prevail on some issues while the Defendant prevails on others. In a case like this, it can sometimes be unclear which party should be considered the prevailing party. Under Florida Law, in order to determine which party should be considered the prevailing party, the Judge will have to decide which party prevailed on the most significant issue or issues in the case. So, for example, if the Defendant prevails on three or four minor issues, but the Plaintiff prevails on the most significant issue or issues, then the Judge might decide that the Plaintiff is the prevailing party because the Plaintiff prevailed on the most significant issue or issues in the case, which would mean that the Plaintiff would be entitled to recover attorneys’ fees from the Defendant.
In a case in which the Plaintiff is the prevailing party, and a Final Judgment has been entered in favor of the Plaintiff, the next step is that the Plaintiff must file a Motion For Attorneys’ Fees within 30 days after the filing of the Judgment. The Motion For Attorneys’ Fees is a fairly simple document which sets forth the reasons why the Plaintiff is entitled to an award of attorneys’ fees. These reasons would typically be as follows: (1) the Plaintiff has a valid legal basis for an award of attorneys’ fees, meaning that the lawsuit was based on a contract or statute that contains a prevailing-party attorney fee provision; (2) the Plaintiff included a claim for attorneys’ fees in its initial pleading, in which they set forth the legal basis for such claim; and (3) the Plaintiff was the prevailing party in the lawsuit, because they prevailed on the most significant issue or issues in the case. Unless the Defendant were to agree that the Plaintiff is entitled to an award of attorneys’ fees, there would be a hearing before the Judge on the Motion For Attorneys’ Fees, at which the Judge would decide whether the Plaintiff had established that they were entitled to an award of attorneys’ fees. If the Judge were to find that the Plaintiff had done so, then the Judge would enter an Order ruling that the Plaintiff is entitled to an award of attorneys’ fees to be paid by the Defendant.
Next, the Plaintiff would have to establish the amount of its award of attorneys’ fees. Florida Law provides that when a prevailing party is entitled to an award of attorneys’ fees, they may recover a reasonable amount of fees. This means that the prevailing party must establish the amount of fees that it has paid to its attorney, and that this was a reasonable amount of fees to have been paid for the work that the attorney did in this case. Under Florida Law, in order to establish the reasonableness of the amount of attorneys’ fees that the Plaintiff is seeking, the Plaintiff must present the testimony of a witness who is an expert on the topic of the reasonableness of the amount of attorneys’ fees that should be incurred in a case of that type. Typically, this would be a disinterested, third-party attorney who has experience handling cases of this type, but who is not involved in this particular case. This expert witness should review the file of the Plaintiff’s attorney, as well as the Plaintiff’s attorneys’ billing records, and then give an opinion by testifying in Court about the amount of time and work that was required for this particular case, the usual hourly billing rates of attorneys in the area who handle this type of case, and the total amount of attorneys’ fees that should have been reasonably incurred in this case. Ultimately, the Judge will then decide the amount of the award of reasonable attorneys’ fees to which the Plaintiff is entitled (which may be less than the total amount of attorneys’ fees that the Plaintiff has paid to their attorney).
If you have any questions about your rights related to a potential lawsuit that you may need to file, or about whether you may be entitled to recover an award of attorneys’ fees in that lawsuit, consider contacting a knowledgeable Florida litigation attorney in order to ensure that your interests are protected.
Please note that this article is intended for informational purposes only, and that nothing contained in this article may be relied upon as legal advice. Every situation is unique and requires unique attention and legal advice.