Who wants to pay an attorney? Seriously? About as much as wanting to go to the dentist. But under the American Rule, which is the law almost everywhere in the country, you are responsible for your own attorney’s fees. And average attorney’s fees in New England are pretty steep.
I tell clients that no matter how strongly they feel they have been wronged, and how good I feel about their case, litigation costs money, and a lot by most measures even in smaller commercial disputes. But it’s the principle they say. And I say, principle costs money. I always try to identify, and be creative about ways to recover my client’s attorney’s fees as part of damages. Sometimes it’s in the contract (always have an attorney’s fees provision). Sometimes it’s in a statute, like Connecticut’s unfair trade practice statute.
Problem is the same facts that support say the breach of contract claim, also support the claim that provides for recovery of attorney’s fees. And once the litigation train gets rolling, it’s difficult to keep track of the time spent on one claim versus the other, which is what a lawyer must do to so that he or she can say, “Judge, our client paid us $50,000 to win this case and we want that back because the contract says so!” The other side says nah, “only $10,000 of those fees were for the contract claim, so you only get $10,000.” If you didn’t sufficiently present the judge with time records separating out the time spent on the contract claim (for which the bad guy has to pay the fees) from the other claims (which your client may never get back) your client may not recover any fees at all.
Connecticut’s Supreme Court recently, in Total Recycling Services of Connecticut, Inc., made it clear (you can read the opinion here) that if apportionment of attorney’s fees (meaning those nasty detailed time records) is “impracticable because the claims arise from a common factual nucleus and are intertwined” your client may get 100% of his attorney’s fees back. I still keep detailed time records in these case, though, because it’s just good practice. In that case, the party sued under 3 different contracts; two allowed for recovery of fees, one didn’t. And yes, even though the party proved a breach of all three, the jury awarded damages only on the one that did not allow for fees. Winner sought all of its attorney’s fees and the other side said no way, you didn’t win anything on the contracts that provide for fees. The Court said not so fast. Even if you lose on the contracts that allow for attorney’s fees to the winner, but win on the contract that does not, you can still get all of your client’s fees paid for by the loser.
Q4U: Would you have pursued a case if you knew you could recover your fees? Let me know if you walked away from a dispute because you didn’t want to pay a lawyer.