Are you on the verge of filing a lawsuit? If so, a question you may have is whether or not you will be able to recover the attorney’s fees you are about to spend from the party you are suing. This “cost-benefit” analysis is an absolute prerequisite before litigating in the Courts. In other words, will your expenditure of attorney fees outstrip your potential recovery? Having a deeper understanding of lawsuits and the legal system can help answer your questions. Read on to learn more about the possibility of collecting attorney fees and more.
Are attorney fees recoverable in PA?
One of the most asked questions of litigators is whether their fees can be recovered, as they represent the bulk of litigation costs. The “American Rule” dictates that each party must pay its own attorney fees, regardless of the outcome of the matter.
In Pennsylvania, parties are also responsible for paying their own lawyers, but there are exceptions and situations where the opposing party may be responsible for these fees:
- There’s a contract where the parties have agreed that counsel fees can be
- In a divorce case, a judge may authorize the opposing party (if they are the breadwinner or sole provider) to cover attorney fees to provide for equality, i.e., equal access to legal counsel.
- A statute authorizes a claim for counsel fees as part of a party’s case.
As noted above, notwithstanding one’s right to seek counsel fees, in the end, the final say on any award (and the amount) lies with the Judge. There are never any guarantees in litigation.
Affording attorney fees
Since it’s likely you will be paying attorney fees up front in your case, know that common payment options include hourly, flat, contingent or a combination thereof.
According to the American Bar Association’s Model Rules of Professional Conduct, “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”
Like in other industries, it’s reasonable that an attorney with more experience or depth of knowledge in a certain area of law may charge accordingly.
What does a lawsuit cost?
Beyond paying attorney fees, what are other costs involved in litigation? Other possible expenses include:
- Filing and court fees – each court has its own fee schedule; if you are bringing the suit, you pay this fee to begin your court case, which fees vary depending on the level of court and type of case; other court fees you may incur during your case include service fees to have the defendant served and made aware of the lawsuit; witness or subpoena fees; and possibly appeal fees should your case not go your way and you seek the decision of a higher court.
- Transportation or lodging – depending on where your case is tried in relation to your home or current living situation, you may find yourself spending money on gas, tolls, parking, and/or hotels, especially if you have a multi-day trial.
- Expert or consultant fees – beyond the legal support and experience of your attorney, you may also find yourself relying on the aid of an expert witness like a medical professional or forensic specialist, depending on the type of suit you are bringing; these fees are typically “advanced” by your attorney and billed back as an expense to you.
The caveat here is to be aware of what you’re getting into cost-wise before you file suit. Ask your lawyer. Some matters are unfortunately not worth pursuing in the Courts simply because fees and costs will likely outstrip any potential recovery, i.e. an attorney billing $400/hour will quickly render a $1,000 claim pointless.
Can I represent myself in a lawsuit?
You may also wonder if you can represent yourself as a plaintiff in court proceedings, i.e., pro se, to avoid paying attorney fees. In short, you can do so in most circumstances, with exceptions being:
- Corporations cannot represent themselves.
- If you are a member of a class action lawsuit.
- If you are a parent representing a child, except to appeal the denial of the child’s social security benefits.
If a lawsuit is brought against you, you also have the right to self-represent.
While self-representation may seem like a cost-saving measure, it’s usually “pennywise and pound foolish.” Though court officials and staff can answer questions regarding procedures and how to access legal forms and reference materials, they are prohibited from providing legal advice. Furthermore, the court system is governed by a myriad of rules, and what seems like a straightforward process (for example, name changes) can result in errors and even more costly mistakes. Some judges have commented that parties representing themselves do so “at their own peril.”
Beyond familiarity with the state (and local) rules, the benefits of retaining a litigation attorney include, but are not limited to, connections to Courthouse culture:
- Understanding Courtroom conduct and sensitivity of judges – at the end of the day, lawyers, judges, and court personnel are human beings, and local counsel likely has a relationship with these individuals, having appeared before them many times. These previous appearances often form the basis for instant credibility.
- Familiarity with local or unique filing procedures – even between county courts, local counsel understands the nuances of procedures like walk-in motions, e-filing, and even how to get in front of a judge in an emergency.
- Connection with community and culture – especially if entering a trial with a jury of your peers, local counsel will be able to weigh in on where local partialities lie and help ensure a more fair trial.
Get litigation support
I once heard a Judge ask a struggling pro se litigant in Court, “Would you let your neighbor do brain surgery on you?” the suggestion being that you’re well advised to have counsel in the Courts. And while representation does come with a price, hiring counsel also provides the safety net of having a licensed attorney at your side, helping you navigate the intricacies of litigation.
FLB’s Litigation & Trial Practice Group has a combined 200 years of experience, which can be applied to your matter, helping you find solutions and assess and manage the risks and unknowns of lawsuits.
Contact us today if you’re thinking about pursuing a lawsuit or in need of defense.
