Who Pays for Attorney’s Fees?

Who Pays for Attorney’s Fees?

In Florida, each party generally pays for his or her own attorney’s fees unless otherwise provided for by statute or contract.  In many instances the statute or contract states that an award of attorney’s fees goes to the “prevailing party”.   Thus, the proof of fees is postponed until a decision is made on the merits. This is the only practical solution when the fees are awarded to the prevailing party, as that information is not known until the judgment. When the standard for awarding damages is the prevailing party, the prevailing party is the one who wins on the major issues, even if the court does not award damages to the prevailing party. A plaintiff who won the trial but not on all issues on appeal may seek an award of attorney fees.

When are Attorney’s Fees Awarded Florida Statute 57.105?

Attorney fees and prejudgment interest may be assessed against the losing party and their attorney under statute if the losing party knew or should have known that a claim or defense presented initially or at any time before trial lacked material facts necessary to support it or would not be supported by existing law applied to those facts. The attorney can rely on the client’s representations if the attorney acted in good faith regarding the existence of the facts. However, the statute does not apply if the claim or defense was presented as a genuine argument for changing existing law or establishing new law with a reasonable expectation of success, or unless sanctions are awarded before a voluntary dismissal or settlement.

If a party proves that a proceeding was primarily taken for unreasonable delay, the court must award damages for obtaining the order, including attorney fees and other losses. The operative standard now is that the party and attorney knew or should have known that a claim or defense lacked supporting facts or was not supported by existing law, or that a proceeding was taken for unreasonable delay. Fees must be assessed against both the lawyer and the party, unless the lawyer demonstrates good faith. It is the lawyer’s responsibility to show good faith. This does not apply to every losing party.

In an order awarding fees, the trial court must find a violation of the standard. The party seeking sanctions must serve the motion, but not file it, and give the opposing party 21 days to withdraw the offending item. If the item is withdrawn, no sanctions are available under the statute. This can be accomplished by serving a paper designating withdrawal or amending the motion to achieve the same result. When the court finds that the proceeding was frivolous, a fee award is mandatory. The court must hold an evidentiary hearing and make detailed, specific findings reciting the facts on which the order is based.

Top Palm Coast Real Estate Litigation Lawyer

Andrew J. Pascale is a top Palm Coast area real estate litigation lawyer.  Call him today at 877-667-1211 and let his experience give you an advantage.  This blog does not constitute legal advice and is for illustrative purposes only.