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Can I Recover My Attorneys Fees? Maybe. It Depends.

Julia Jensen Smolka

When I first meet with a client on a new litigation matter, one of their first questions is how much is this going to cost. The second question is “whether the party will be responsible to pay my attorneys fees”. My answer to that question is always “It depends.”

These are legitimate questions. We all know that litigation is expensive. When clients come to us and want to sue somebody, it’s because they believe that they have been wronged . If they have been wronged, they believe that they should not be responsible for the fees to bring the lawsuit.

Whether or not the defendant will be responsible for attorneys fees depends on whether: a) there is a contract which provides for attorney fee recovery; or b) there is a statute which provides recovery of attorneys fees as part of the damages. Let’s walk through both instances.

You may come to us because your employer owes you wages and is refusing to pay you what you are owed. You want to sue for the wages. Can you recover your attorneys fees if you win in court? The answer is yes, because under the Illinois Wage Payment and Collection Act, in the case an employer is found to have wrongfully withheld wages to an employee, the employee may recover not only wages, but attorneys fees and costs in bringing the action. The law encourages attorneys to file suit against employers, and encourages employers to pay their employees, to avoid being sued for wages. Several other city, state and federal statutes, like discrimination statutes, landlord tenant statutes and employment statutes allow for the plaintiff to recover attorneys’ fees as a way to balance power.

Examples of contractual provisions for recovery of legal fees follow:

You may be a contractor. You are hired by a homeowner to work on her house. You have her sign a contract that provides that you are entitled to recover your attorneys fees and costs if you need to sue to enforce payment. The homeowner fails to pay you at the end of the project because she doesn’t like the color of the paint. You do sue her for the balance due because your contract allows for recovery of your attorneys’ fees and costs, you can recover them if you win at trial.

You may be a contractor who performed work on a building for a general contractor. The contractor did not pay you, and you are out several thousand dollars. You have an oral contract with the general contractor (not in writing.) You did not record a lien on the property. (If you had a lien, you may be entitled to recover fees because of the statute.) You can sue the general contractor and recover the contract amount, but you will not recover any of your attorneys fees. There is no statute contract provision that provides for recovery your attorneys’ fees.

You may be a homeowner who hired a painter to paint your house. You have paid the down payment, but the painter does a bad job painting your house. You refused to pay the painter at the end, showing him the issues you have with the work. You have a contract with the painter. It provides that if there is a lawsuit with regards to the contract that “the prevailing party shall recover its reasonable attorneys fees”. Can the painter recover its fees? The answer is yes if he wins at trial. But so can the homeowner if the court finds in his favor. The contract allows for the winner at trial to be awarded his fees.

So the point is that if you are in a position to have a written contract, make sure it has language in it that allows you as the prevailing party to recover your reasonable attorneys fees and costs. Look at your contract today to see if that language is contained in the contract. If it is not, call us, and we will help you draft that language. In particular, the term “prevailing party” should be defined in the contract.

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