Possible Bases for Attorneys’ Fees
Do such bases exist? The answer typically depends on whether a contract exists between the subject parties that expressly provides for an award of fees, or whether a statute supports a fee claim.
In the former instance, a common provision says that the prevailing party in a dispute implicating the underlying contract would be entitled to recover reasonable attorneys’ fees. (Again, what constitutes a prevailing party is governed by case law and claims pled.) It’s important to study the language of the contract provision closely. Some provisions are narrow, such that the claim implicating fees must arise from the underlying contract. By contrast, some clauses are broader and permit prevailing party fees for claims “related to” the contract or the litigation. If the contract language is broad, a movant may also seek fees incurred in proving a “reasonable fee.” Determining “reasonable” attorneys’ fees requires application of Rule 4-1.5 of the Rules Regulating the Florida Bar and consideration of pertinent case law.
It’s also vital to assess whether certain causes of action implicate a statutory basis for awarding legal fees. Numerous state and federal statutes provide for prevailing party attorneys’ fees. Counsel must carefully study the language of particular statutes given that not all statutes apply equally to plaintiffs and defendants. For example, 42 USC 1983 grants prevailing party fees to plaintiffs but generally not to governmental bodies, while section 448.08, Florida Statutes, provides a statutory basis for the recoverability of prevailing party fees in certain employment-related disputes. Similarly, Florida’s Deceptive and Unfair Trade Practices Act offers statutory support for awarding prevailing party attorneys’ fees.
Note, too, that Florida’s Offer of Judgment Statute also provides a basis to recover attorneys’ fees, albeit not on a prevailing party basis. Fees arising out of this provision are triggered only if a particularized Offer of Judgment (or Proposal for Settlement) is properly formed and served (but not filed) during litigation and pursuant to the requirements of the statute and related procedural rules. Procedural and substantive requirements must be strictly followed to create a basis for obtaining an enforceable attorneys’ fee award under the statute. Note that such fees are considered “sanctions” and are available only when a properly framed offer or proposal is not accepted in a timely manner. Thus, the fee quantum in this context is based on when the offer or proposal is served and would not represent all fees incurred since inception.
As for attorneys’ fees awarded for sanctionable conduct, courts have broad discretion provided certain findings are determined. Analysis of whether fees can be awarded as sanctions typically starts with an assessment of the severity of the behavior at issue, as evaluated by pertinent case law. The more severe the behavior, the greater the probability of being sanctioned with a fee award. Generally, the measure of fees awarded as sanctions turns on what fees were incurred as a result of the improper behavior. For example, improper disruption of a deposition may trigger a sanctions award based on attorneys’ fees borne by the client who paid fees for the disrupted effort.