Mass Black Judge

In general, each party in a case pays their own attorneys’ fees; however, there may be exceptions that apply in specific instances.

One such instance occurs when an agreement or statute provides for attorney fee awards. When this occurs, litigants must demonstrate both entitlement and reasonableness; both can be difficult.

Litigation

If you are involved in litigation, whether court-based or arbitration-based, attorney fees may be recoverable under federal and New York State laws. Whether this applies in your specific case depends on its circumstances and nature of dispute; environmental regulation cases and contract claims might contain provisions allowing attorney fee recovery while civil rights, employment law and consumer protection cases often do.

These cases are rare exceptions; most often neither side recovers attorney fees and costs upon the conclusion of their cases, regardless of who wins them. Even in countries with more permissive fee-shifting policies (like India), awards tend to be partial and are determined based on statute or judicial discretion. It’s wise to carefully read any agreement you enter into with your lawyer regarding whether attorney fees and costs would become payable in case your claim succeeds.

Appeals

Courts do not always award attorney fees when adjudicating appeals; only when authorized by statute can winning parties’ attorneys be awarded such costs in appellate cases, according to today’s decision from the Supreme Court in Klein.

Ofttimes, an entitlement to fee awards can be highly contentious. Parties seeking fee awards in commercial matters should submit extensive evidence as to their entitlement, as the Manhattan Commercial Division Justice recently ordered in Core Group Marketing LLC vs MIP One Wall Street Acquisition LLC.

Typically, only costs associated with filing an appeal (docketing fee, taxable disbursements and printing briefs) may be factored into an award of attorney fees. The Supreme Court has made clear that there is no exception to this rule for attorney fees expended on appeal.

Motions

Fee motions often depend on an attorney’s declaration or affidavit with attached time records for support, which should be carefully examined by either attorneys or non-attorney support personnel to ensure accuracy and avoid being used by opposing parties as proof that your fee request is unreasonable. Any errors found will likely be used against you as evidence against it.

Noting unusual expenditures of time in billing records and an attorney fee motion is key for effective fee hearing representation and client participation. Testimony from clients at fee hearings can provide necessary context for hours claimed by lawyers.

Rule 54 explicitly authorizes the court, without local rules, to make an initial determination of liability for fees before considering submissions from parties bearing on the amount of the award. This option can be particularly helpful in cases in which liability questions remain uncertain and evaluation issues complex and numerous.

Trial

Most cases do not reach trial, so in order to be awarded fees you must win either at the conclusion of a trial or through summary judgment (which takes the place of trial). Only then will you qualify as the “prevailing party”, eligible to recover attorneys’ fees.

Plaintiffs often come to mediation believing they should receive in settlement the amount the judge would award them as a fee award had their case gone to trial and won. Meanwhile, defense attorneys tend to focus only on how many hours and hourly rates have accrued so far, failing to consider that in an award of fees from trial the judge could drastically cut both time and hourly rate costs for plaintiff’s attorney up until mediation day.

Some cases involve statutes authorizing attorneys’ fees awards, such as employment law or civil rights claims; in other instances it depends on contract or business dispute terms.