Winning in (or out of) civil court is the ultimate objective for our clients, but the winner of a legal dispute does not always reveal himself at the end of a trial.  Paying attorney’s fees after a trial often decides the ultimate winner, regardless of the result handed down by the judge after trial.

Before ever filing a lawsuit (during a so-called “pre-suit phase”) clients may retain lawyers to make contact with another company or person.  Pre-suit discussions may take place, possible settlements may be discussed, or other topics may be broached, but for purposes of this writing, a dispute arose and was not resolved; hence, one party files a lawsuit.

To file a lawsuit, a person should ALWAYS hire an attorney to file it (for no better reason than an attorney will be trained on all the rules of being in court and, having no such training, a client, if unrepresented, places herself at a huge disadvantage from the very beginning).  Attorneys charge professional fees for their work and, so, the client will become obligated to pay attorney’s fees as part of retaining her lawyer.

The attorney presents the lawsuit to the appropriate Clerk of Court which is the elected county official in charge of maintaining the judges’ records and the county’s Official Records.  A lawsuit is recorded, assigned a case number, and the process starts.  Notably, the Clerk of Court charges to set up and maintain a file.  Nowadays, it’s common for a civil dispute filing fee to cost around $400.00, but when lawyers talk about “costs,” they generally talk about these kinds of costs, i.e., litigation costs such as filing fees, but they don’t necessarily include their own professional fees in this category.

“Attorney’s fees” are thought of separately, and an attorney can charge for each hour he or she works (using an hourly rate agreement) or charge a one-time payment for the entire civil case (using a flat rate fee agreement).  In personal injury cases, attorneys may ethically work on a percentage basis, basing their attorney’s fees on the outcome or otherwise contingent on the outcome.

At the end, as the “winner,” you’ll want to be made whole and reimbursed for these attorney’s fees.  Can you?  It all depends on whether a statute or a contract says so because, in Florida, each party to a lawsuit is legally bound to pay his or her own attorney, UNLESS there’s a statute or contract that says otherwise.  Lease Agreements between landlords and tenants most commonly have “attorney’s fees provisions.” These provisions say that, if there’s a court case, the loser shall reimburse the winner for the winner’s attorney’s fees.  Some statutes say the same thing.  So, in the end, the “winner” may win the lawsuit, but lose overall because the winner has to pay his attorney a large sum for representing him AND pay for his adversary’s attorney.

In civil lawsuits seeking compensation, a party can shift the burden of paying attorney’s fees to their adversary using a statute designed for such use. Businesses can avoid this problem by inserting “attorney’s fees provisions” in this proposals, contracts and invoices, thereby obligating a customer to reimburse the business for attorney’s fees if the business has to go to court to collect on an outstanding invoice.  As a matter of practicality, telling a customer she may owe the invoice, plus litigation costs, plus attorney’s fees, may turn a $200 invoice into a $2,000 judgment that the customer may want to avoid by paying $200.

Keep in mind, winning includes winning the battle over attorney’s fees – sums that can add up to thousands of dollars.