Understand the ABCs of paying attorney fees
Judge Layne Smith
This is the first of two chapters about attorney fees. This chapter will cover who is responsible for paying attorney fees. Next chapter, I’ll explain how “reasonable attorney fees” are determined.
Q. Judge Smith, under what circumstances can one party be forced to pay the opposing party’s attorney fees? Thank you, Jessie
A. Jessie, generally each party is responsible for paying his or her own attorneys, but three notable exceptions may apply:
1) A statute may require the losing party to pay the winning party’s attorney fees;
2) A contract may require the losing party to pay the winning party’s attorney fees; and
3) The court may order one party to pay another’s attorney fee as a sanction for misbehavior.
Let’s discuss some examples.
The Legislature has enacted statutes that require one party to pay another party’s attorney fees. Often, this is done to encourage reasonable settlements, discourage frivolous lawsuits, or to level the playing field. For example, most residential landlord-tenant eviction cases involve questions about the payment of rent.
Usually, the tenant either paid the rent on time or he didn’t; the law requires the loser of the case to pay the winner’s attorney fees.
Another example is one involving insurance claims. If, for example, a contractor’s general liability insurance company denies coverage of a claim, the contractor could defend the claim and sue the insurance company to enforce his contractual rights.
If the insurance company is found to have wrongfully denied the claim, it must reimburse the contractor for the attorney fees he incurred defending himself and enforcing his contractual rights. If the insurance company rightfully denied the claim, the contractor doesn’t have to reimburse his insurer for the attorney fees it incurred.
Parties to a written contract usually negotiate terms, which often include a clause for attorney fees. Based on the terms of the contract, if a lawsuit is filed, the loser must reimburse the winner’s reasonable attorney fees. Examples of contracts that frequently include attorney fees clauses are installment loan contracts, commercial landlord-tenant leases, and non-compete agreements.
As sanctions for bad behavior
Sometimes parties ignore or stonewall discovery deadlines or engage in other poor conduct that causes unnecessary work, delays, and expenses. If their misbehavior is egregious enough, courts can require them to reimburse opposing parties’ related attorney fees to discourage future bad behavior.
Suppose defense counsel must file a motion and attend a hearing to compel the plaintiff to turn over requested documents. As a sanction, the court might order the plaintiff to pay defense counsel for two hours of her time.
J. Layne Smith is a Leon County Judge who speaks and writes about civics and the law. Email your questions to email@example.com.