Revisiting the Standard Attorneys’ Fee and Cost Provision

In Florida, when parties have a contract dispute, they can include a clause that says the winning party can get their attorney’s fees and costs paid by the losing party. However, the way this clause is usually written in contracts can make it hard for the winning party to get all their fees and costs covered. This article suggests that the clause should be rewritten to make it easier for the winning party to recover their legal expenses. It provides sample clauses that do this. Florida courts follow the “American rule” that attorneys’ fees can only be recovered if there is a contract, statute, or court rule that allows it. If a contract says the winning party can get attorneys’ fees, the court must enforce it. However, there is a debate about whether fees for determining the amount of recoverable fees can be recovered. Court costs are generally recoverable, but some significant costs, like electronic research charges and non-evidentiary court reporter fees, may not be included. The rules for awarding costs are advisory, but courts generally follow them. If a contract says the winning party can recover “all costs,” it usually means only those costs that are taxable, unless the contract specifically lists nontaxable costs as recoverable. However, federal courts have upheld generic language allowing recovery of nontaxable costs, and this may be allowed in Florida as well. In Florida, the way fees and costs are currently written in contracts could result in not being able to recover all the money spent on lawyers and other expenses in a legal dispute. To avoid this, it’s recommended that transactional attorneys change the language in fee and cost provisions to make it clear that the winning party can get back the money they spent on lawyers and certain expenses that are not normally covered. This will make it easier to recover these costs in a lawsuit. It seems like the current standard language was used without much thought and could be causing problems, so it’s better to be clear about what costs can be recovered in a legal dispute. The model fee and cost provisions provide options for recovering attorney’s fees and costs in a contract. The “long form” is detailed and precise, while the “short form” is shorter due to space limitations. Both alternatives are improvements to the standard language in contracts governed by Florida law. The provisions also allow for reciprocal recovery, meaning both parties can recover fees and costs. These options provide better protection for the parties involved in the contract. If there’s a legal fight over this Agreement, the winning side can get back the money they spent on lawyers and court costs. This includes the money they spent deciding how much money they should get back. But the judge will make sure the amount is fair. Recoverable costs are the reasonable expenses that the winning party can ask the other side to pay. This includes things like investigation costs, copying documents, electronic discovery, research service charges, phone and mailing expenses, travel costs, IT support charges, expert witness fees, court reporter fees, and other reasonable costs related to the case. If there’s a disagreement about this Agreement, the winner can ask the loser to pay for their lawyer and other costs, like investigation and travel expenses. The rules about what costs can be paid are kind of unclear, so we think the language in the Agreement should be updated to make it clearer. In Florida, if a court orders someone to pay another person’s legal fees, the person who won the case might also be able to get their own legal fees paid by the losing party. But it can be complicated, and different courts have made different decisions about when this is allowed. Some courts say you can get fees for fees, while others say you can’t. It depends on the specific law and rules that apply to each case. In Florida, the ability to recover legal fees is different depending on the district. The guidelines for recovering costs in legal cases are advisory and can vary depending on the specific contract involved. If a contract includes a provision for attorney’s fees, the court may allow the other party to recover them if they prevail in the case. The authors are suggesting improvements on the standard fee and cost provisions in contracts for parties who want to recover attorneys’ fees and costs under Florida law. The language in these alternatives should be changed to fit the specific transaction and client goals. The authors are experienced attorneys from a law firm in Orlando. Their focus is on complex commercial litigation and bankruptcy disputes. This article was submitted by the Trial Lawyers Section.

Source: https://www.floridabar.org/the-florida-bar-journal/revisiting-the-standard-attorneys-fee-and-cost-provision/