Two key considerations in deciding whether to pursue, or abandon, potential legal rights in litigation are often how much is it going to cost me in legal fees, and can I recover those fees from the other side if we win.
The question of how much will it cost in legal fees is often fact specific, requiring a case-by-case look at a multitude of factors, such as
1. What are your initial goals and objectives;
2. Where will the litigation take place (e.g., state court (county or circuit), or federal court);
3. How aggressive are you willing to be; and
4. What strategies should be employed early on, and throughout the course of the litigation as things unfold and develop.
Even taking these (and other) factors into account, there still remain various unknowns, such as, how much of a fight do you anticipate from the other side, what potential court rules and procedures will come into play along the way, and are we likely to resolve the case early on or will it require significant litigation and perhaps even a trial.
An answer to the second question though (i.e., can I recover what I pay in legal fees) is actually a bit easier to sort out, though people are often surprised if the analysis leads to an answer of “not necessarily.”
Initially, Florida follows what’s called the “American Rule” when it comes to attorney’s fees. What that means is everyone generally pays their own attorney’s fees unless a contract or statute provides otherwise. Price v. Tyler, 890 So. 2d 246, 250 (Fla. 2004) (“[A]ttorney’s fees incurred while prosecuting or defending a claim are not recoverable in the absence of a statute or contractual agreement authorizing their recovery.”). And, because fee-shifting provisions in statutes are in “derogation” of the common law (i.e., contrary to the default American Rule) they are construed against awarding attorney’s fees as opposed to in favor of awarding attorney’s fees. Parker v. Bd. of Trustees of City Pension Fund for Firefighters & Police Officers in City of Tampa, 149 So. 3d 1129, 1133 (Fla. 2014) (“It is also well-established in Florida that a statute that awards attorney’s fees is in derogation of the common law rule that each party pay its own attorney’s fees and must be strictly construed.”). The same rule of strict construction against attorney’s fee awards also applies to contractual fee-shifting provisions. Dan Galasso Waste Serv., Inc. v. Hemery, 528 So. 2d 1356, 1358 (Fla. 3d DCA 1988) (“we are constrained by prevailing case law to strictly construe any provision in a contract providing for attorney’s fees so as to deny such fees in close cases because an award of such fees is in derogation of common law.”); Hurley v. Slingerland, 480 So. 2d 104, 107 (Fla. 4th DCA 1985) (“Contractual provisions for attorney’s fees must be strictly construed.”).
So what can you do? First, while you may not be able to control the statutes you are bound by, you can control the contract(s) you prepare. Accordingly, it’s important to consider ahead of time whether you want to include an attorney’s fee clause in your contract(s) and make sure it is clearly drafted if so. Second, consider working closely with attorneys who understand the contractual rights you may have and/or the statutory framework that may govern your claims, and that can utilize one or both of them to try and maximize recovery where possible.
Feel free to contact us to discuss your own contractual or legal needs and to learn more about how we can help.