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Who Pays for the Tab?

mattVery few people would ever dispute that litigation is an investment.  Although some cases are for money while others are to achieve a non-monetary goal, all court related matters are about improving one’s quality of life or obtaining that which they deemed to be owed.  In other words, the key is a betterment of the status quo.

With that in mind, the first question a potential litigant needs to ask is whether the resources they (time, money, etc.) they are expending justify the result they seek to obtain.  Sometime the answer is clear in that most people would not spend $250.00 in court costs if they were trying to recapture $20.00 from a local retailer who gave them an inferior product.  On the other hand, sometimes the answer is less clear where the desired result pertains to a family situation or perhaps enjoyment of property. 

When seeking to balance cost v. benefit, most people look to attorney fees and ask whether the prevailing party can seek repayment.  In Florida the law is clear: attorney fees may only be recovered (1) if a particular statute permits recovery, or (2) if the parties are litigating under a contract that expressly states that attorney fees can be recovered.

As an illustration, if a tenant sues a landlord for failing to maintain a dwelling unit, the prevailing party will be entitled to attorney fees because Chapter 83 states as much.  Other examples where attorney fees can be awarded under certain circumstances include Chapter 61 (dissolution of marriage), Chapters 718 and 720 (homeowner’s associations and condominiums) and Chapter 57 (frivolous litigation).  Similarly, if a potential claimant wishes to bring an action for failure to pay a loan, and the loan documents state that attorney fees are recoverable, then the court will honor that provision given that it was previously agreed to between the parties.  Absent one of these two circumstances, even if a party prevails in court they will not be able to recuperate the funds they invested in the action.

It is also important to understand that attorney fees are always reciprocal except for certain family law matters.  In other words, should you be entitled to fees yet not prevail in court, chances are the other party will then come after you for what they had to spend defending against your claim.

When considering litigation, always have a frank conversation with your attorney so that you know ahead of time whether your attorney fees can be recovered and whether the other side can potentially come after you for the same.  Although you may still choose to litigate either way, the value of knowing all positives and negatives simply cannot be understated.