BRIEF BYTES: Question and Answer Forum

  We are introducing an online newsletter. The purpose is to answer frequently asked or unusual questions. Topics will range from real estate, business, litigation and trusts and estates. Your feedback is appreciated. Direct your comments to Cherisse Roy at croy@scott-harris.com

Question: Will the prevailing party in a lawsuit always be awarded attorney's fees?

Response from John Jorgensen, Esq.:

   In Great Britain, the English Rule provides that the prevailing party in a lawsuit always gets attorney's fees. In this country, under the American Rule, you are often not awarded attorney's fees even if you are the successful party.

  You can be awarded attorney's fees in two ways. The first way is by contract. If you have entered into a contract that has an attorney's fees provisions, the prevailing party will be awarded fees. The FAR/BAR contract has such a provision. In order to be awarded and collect fees, a judgment must be entered by a court. If the case is settled outside of court, chances are, the parties will pay their own fees and costs.

  The second way of being awarded attorney's fees is by statute. There are a number of Florida Statutes that provide for payment of attorney's fees if there is a violation of the statute. Some examples include enforcement of insurance contracts, foreclosure of construction liens and various consumer statutes. There is also an "offer of judgment" statute that includes a mechanism for the payment of attorney's fees. In order to encourage litigants to settle cases, the offer of judgment statute provides that either a plaintiff or defendant can make a formal offer of judgment during the pendency of a case. For instance, if the defendant makes an offer of judgment to the plaintiff for $50,000.00, which the plaintiff refuses to accept, and if the case goes to trial, then the defendant will be awarded attorney's fees if the plaintiff does not obtain a judgment for more than 75%
($37,500.00) of the $50,000.00 offer of judgment. There are similar rules that apply when a plaintiff makes an offer of judgment. The offer of judgment statute is frequently used in litigation and often pressures either the plaintiff or defendant to settle the case.

  Given the cost of litigation, the issue of attorney's fees must be addressed at the beginning of the case. Never take for granted that you will be awarded attorney's fees if you are victorious.

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