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Getting Attorneys Fees: Putting it in the Contract may Not be Enough


You may already know how important an attorney fee provision on your contracts can be. Attorneys fees for a prevailing party, can discourage frivolous lawsuits, and give clients more freedom to pursue their case, knowing that the money they are paying to their attorney, will eventually be paid back, when the case is over, if victorious.

But just having a prevailing party attorneys fee provision may not be enough, because often, the determination of who actually did prevail in a case, is not so clear. Often, wins and losses in court, after a trial, are not as obvious as it may seem.

Situations Where the Winner Isn’t so Clear

For example, assume you filed a commercial litigation case, alleging four causes of action. The court dismisses two of them, but you win on the other two. Are you the prevailing party, thus entitling you to your attorneys fees?

What if you file a lawsuit for injunctive relief and damages, and you get one awarded to you, but not the other? Did you “win the case?”

The same issue arises with damages; if your damages were $100,000, but in court you only end up winning $20,000, are you the prevailing party? You certainly didn’t lose. But you didn’t win what you believed were the extent of your damages.

If you sue someone, they may file a counterclaim against you. What if you win some and lose some on your claims, and the Defendant wins some and loses some in its counterclaims?

These scenarios, and many others like it, point out how difficult it can be to determine who the prevailing party is. And it’s important because if a client believes that he or she is getting his attorneys fee back, and even if the client is happy at the end result of the case, the client may not be so happy to learn that the court didn’t see the client as the “winner,” and thus, the client is not getting his attorneys fees.

Be Careful What You File

One way to minimize this risk is to avoid “throwing things against the wall.” Many attorneys just file lawsuits with as many claims and causes of actions as they can. The more they file, the more likely they are to win on at least some of what they have filed, the logic goes.

But filing numerous claims and causes of action, increases the chance that they will lose on some of those counts. And even though the client may receive his or her damages for the counts or causes of action that the client wins on, now, there is the chance the court doesn’t consider the client to be the prevailing party.

Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993 today to make sure your business contracts are drafted the right way.




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