How to Recover Legal Fees
Generally, recovering legal fees is difficult. In the U.S. legal system each side pays their own legal fees, win or lose. This helps avoid perverse incentives to prolong litigation. For certain types of cases, however, laws have been written to allow recovery of legal fees. The "fee-shifting statutes," as they are called, make it easier to bring civil rights cases where the plaintiff could not otherwise afford to bring the suit. Courts can also award legal fees in cases of a contract violation where payment of legal fees to enforce the agreement is an express provision of the contract.
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Instructions
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Identify a fee-shifting mechanism. To overcome the assumption that legal fees are not recoverable, you will need a clause in a relevant statute or contract that awards attorneys fees. In identifying fee-shifting language, be sure to locate any criteria for invoking the fee-shifting, such as being a prevailing, or winning, party of a certain type of claim.
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Seek partial fee-shifting. Rules 11, 26, 37 and 41 of the Federal Rules of Civil Procedure provide for limited fee-shifting in special circumstances. The cost in legal fees of complying with discovery requests is sometimes shared between the parties because of the extent of the expense and the parties' relative ability to bear the burden. A federal judge can award legal fees related to defending against a frivolous motion or for refiling a suit after having voluntarily dismissed it once before.
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File a motion with the court. It's not impossible for a court to award attorney's fees without being specifically asked to do so, but usually a party must file a motion with a formal request for fees. The motion will have to state the fee-shifting mechanism being invoked and show that all the prerequisites have been met.
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Tips & Warnings
When costs are awarded in a lawsuit, this usually refers to expenses like filing fees and copy costs, but excludes legal fees. When binding arbitration is involved, fee-shifting is either governed by the contract that mandated the arbitration or is decided exclusively by the arbitrator. State laws on fee-shifting vary.
