In Florida, attorney’s fees are generally recoverable by the winning party if they are allowed by agreement such as in a written contract or by law in a statute. This protocol is commonly called the American Rule because it modified its cousin, the English Rule, which awarded fees to the winner in all civil cases.
Attorney’s fee can also be awarded in a lawsuit under procedural rules, such as for the failure to make discovery. But such fees awarded in a lawsuit are limited to the specific event like failing to turn over documents and do not include all the reasonable fees incurred in the litigation that have their genesis in a contract or statute.
First it is useful to define the applicable terms and to distinguish between them. Fees are those amounts paid to attorneys representing you in a lawsuit. They are generally paid pursuant to a written retainer or engagement agreement that defines the work and the rate charged. The arrangement can be hourly, fixed or flat, or on a contingent basis.
Costs are monies paid for events within a lawsuit such as filing fees paid to the Clerk of Court or for deposition transcripts paid to a Court Reporter that are used at trial. Costs may be addressed in a retainer or engagement agreement and paid from trust money but they are incurred from third parties like a court reporter or the Clerk of Court.
The recovery of fees that are allowed in a case are governed by the Rules Regulating the Florida Bar and by case precedent. The primary Bar Rule that impacts the reasonableness of fees claimed in a case is Rule 4‑1.5 of the Rules Regulating the Florida Bar. That Rule addresses the factors to be considered in determining whether fees are reasonable and describes the limits on what may be charged.
The determination of an award of fees is within the discretion of the judge. Guiding the judge in the review and award of claimed fees are cases like Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Such cases define the areas of inquiry into which the court should look to determine whether the claimed fees are reasonable.
In contrast the costs that may be recovered are primarily regulated by the Statewide Uniform Guidelines for Taxation of Costs. That list of taxable and non-taxable costs was originally adopted by the Florida Supreme Court in 1981 and has been updated over the years. But business contracts may and often do modify those Guidelines by adding costs that might not otherwise be recoverable or taxable.
Some examples of costs that do not currently appear in the Guidelines or are not automatically taxed are investigation expenses, electronic discovery costs, electronic research and telephone charges, delivery service and courier charges, attorney and expert travel expenses, information technology support charges, and mediation and mediator charges. Business contracts can add these costs to the agreed recoverable costs in a case so that the party that wins the lawsuit can recover an entitlement to more of the litigation costs than provided by the Statewide Uniform Guidelines.
Where fees are allowed Florida law provides for only the recovery of reasonable fees. This means a party may not automatically recover all of the fees it paid its attorney in a case and can only recover those that are either agreed to be reasonable or that the court decides are reasonable.
The reasonableness of an attorney’s fees is determined in a process called the lodestar approach. The lodestar method determines the reasonable hours from the work performed and multiplies that by what the judge defines as the reasonable hourly rate. In contingent fee arrangements the judge must also determine whether a contingency risk multiplier is appropriate and if so then by what amount to multiply the lodestar amount.
An attorney’s hourly rate is often reflected in the retainer agreement and the work performed is commonly defined by billing statements or invoices. If your attorney’s hourly rate is appropriate for the area, the case, and your attorney’s experience then that hourly rate should be deemed reasonable. Likewise if your attorney has thoroughly documented the work performed in the case and that work is deemed appropriate in the litigation then the total fees should generally be reasonable and awarded in the litigation.
However where a client agrees to pay an attorney at an hourly rate that is not commensurate with the attorney’s experience or the jurisdiction then the judge may reduce the hourly rate to an amount that is appropriate and reasonable in the judge’s discretion. Likewise the judge may reduce the hours awarded if the judge finds that the work performed was not necessary in the litigation. The judge may also not award more than the fee agreed between the attorney and client but it is not a factor for the judge as to whether the claimed fees have been paid by that time.
The discretionary decision that a judge makes on these issues is based on and supported by expert testimony of an attorney who was not involved in the lawsuit. The parties seeking and opposing fees must retain those experts to provide an opinion on the hourly rate and on the reasonableness of the work performed.
Under the American Rule attorney’s fees are generally recoverable to a prevailing party in a case if they are provided by a written contract or a statute. But fees may also come from proposals for settlement that are made in a lawsuit where there is no contract or applicable statute. Examples of those matters would be business torts that are more fully addressed in my separate article on common legal claims in business disputes.
Fees may also be awarded during a lawsuit as a sanction imposed by the judge or after the lawsuit if the appropriate motion was served and the judge determines that the case was frivolous. Sanctions imposed during a case are often connected in some fashion to a failure to make or provide discovery after being ordered to do so. Fees awarded at the conclusion of a case as a sanction are most often based on Florida’s frivolous lawsuit statute. That statute is found at Section 57.105 of the Florida Statutes and cases decided under the statute define a frivolous motion, pleading, or lawsuit as one that is so significantly devoid of facts and law as to render the matter baseless and frivolous.
It is a common misconception that when one wins a trial the other side is obligated to pay the awarded sum plus reasonable attorney’s fees and allowed costs. But just as with a final judgment the most the court can award is an entitlement to the reasonable attorney’s fees and costs which sums can be added to an existing judgment or awarded in a judgment of their own. As to what you can do with a final judgment you are welcome to review my separate article on that topic.
The actual recovery of fees and costs is no difference than collecting on a final judgment. Therefore whether a party may ultimately recover fees from a particular lawsuit and the collectability of those fees over the life of a judgment are factors that any litigant should consider in the decision of whether to file or pursue a lawsuit.
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
