If you are wondering how you can get the other side to pay my attorney fees if I win a lawsuit then this guide is for you.
No matter what your case is whether family law case, tort action, contractual dispute, one of the most common queries which the clients will usually have for the attorneys is – how to recover the fee of lawyer from the opposite party, in case if they win. So, today in this brief guide I am going to elucidate the same. It is not that easy case to recover money from the other party to pay to your lawyer in case if you win.
You should be aware about this fact that in the legal system of America says that every person is liable for paying their own legal fee. No matter what the case is about. And through a contract or statute between both parties, this rule can be changed. This is known as fee shifting agreements.
The government can alone enact a statute permitting the parties to do fee shifting. And this can happen in any case related to the public interest where one party sues the other to enforce a right/obligation. And in this statute, there should be a public policy which should be there for fee shifting.
For instance, take the case of a home owner’s association disputes. They very well maintain the properties and offer various services to the communities. Also, they enhance and maintain property values and much more. The members of the homeowners association need to maintain their properties and also pay a maintenance fee. So, now here the only method through which the association can enforce these requirements is through the filing of lawsuits. If the association is persuaded to bear its own fees for lawyers even when successful, most associations would be unable to enforce their rules or collect their dues. As a result, most states have enacted fee shifting statutes that apply to homeowners associations.
Homeowners’ association cases vary from state to state and also in federal jurisdiction. Some other instances of fee shifting statutes are class actions, lemon lawsuits, civil rights cases, antitrust lawsuits, etc. In each case, there is a public policy reason for permitting a dominant party to shift the burden of lawyer’s fees to the opposite party.
Then, through contractual terms also the fee is shifted to the losing party. And in case if there is a breach of contract. Then fee shifting provision should be precise and not ambiguous. There is also one sided fee shifting which is present in many contracts, but the state laws are of reciprocal nature which permits both the parties to recover the attorney fees i.e. prevailing party. That too, in a case where there is a contractual agreement for fee shifting.
Entitlement to attorney fees in a lawsuit is must allege. Also, it is important to make the other party aware of the fact that the winning party intends to seek the lawyer’s fee from the losing party. Failing to do so may waive a party’s right to recover such fees, even if they would otherwise be entitled to them through contract or statute. Showing the amount and the reasonability is a must. In many cases, it is done through the use of an affidavit. But in some cases, adversarial hearing is important in which there is evidence given regarding the amount of fees. Plus, there is an expert witness who testifies the same. Also, the attorney fee amount can be exceeded in a controversy lawsuit and it can still be regarded as a reasonable amount.
Also, in divorce proceedings, the attorney fees can be recovered from the other party. The only thing is that the party asking for fee shifting should show that they have faced a lot of hardship. Also, in a divorce case alimony can be obtained while the suit is pending which is known as alimony pendent lite i.e. alimony pending lawsuit. This also is a form of recognition in which one party is not able to meet the financial liabilities which includes paying the court fee or attorney fee. Plus, there is no winning or losing party in a divorce suit, so this can be termed as a different party paying the lawyers fee.