Hope for the best, prepare for the worst. When drafting contracts, agreements and clauses in general, everyone typically starts with the best of intentions – that everyone will do what they agreed to do. Unfortunately, not everyone does what they say they are going to do, even if they have good intentions.
If you can’t work out a solution, then the lawsuit gets filed. No one wants to be involved in a lawsuit. Litigation involves time and stress, but those can often pale to the legal fees spent by both sides. Attorneys try to protect their clients from those fees. In the past, the general strategy would be to add a fees and costs clause that awards attorneys’ fees and costs to the loser. However, there is a second step that may be missing from your contract.
If you win your case, it’s not as simple as the losing side writing a check for the fees and costs you spent to win. One of two things generally happens after you win, either both parties agree on the amount of fees and costs to pay or everyone goes back to court to figure out if the fees and costs are reasonable. The attorney’s fees to fight about the reasonableness of the fees and costs, often referred to as fees on fees, aren’t typically included. Having to pay even more fees often leads the winner to settle for less than they may have been due, but all of that can be changed.
In a recent Florida case, Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, the 2nd District Court of Appeal agreed with a 2012 case out of the 4th District Court of Appeal, Waverly at Las Olas Condominium Association, Inc. v. Waverly Las Olas, LLC, that allowed the winning party to not only get their attorneys’ fees for time spent on the case, but also for the time spent determining the the final amount of fees, because the contract included the right language.
Depending on the goals of everyone involved in the contract, you may want to include the language in your contract. If you have the opportunity to modify your contract or agreement, contact an experienced attorney at E.A. Zebell, PL to discuss your options.