FLORIDA LAWSUIT: CAN YOU GET THE OTHER SIDE, AND THEIR FLORIDA LAWYERS, TO PAY YOUR LEGAL FEES?: a recent Florida appeals case about attorneys fees as a sanction (57.105)

Uncategorized • Jan 5, 2014

FLORIDA LAW ON ATTORNEYS FEES

Florida litigation can be costly. After all, there’s legal work to be performed by lawyers, trial lawyers, paralegals, and investigators, who handle preparation for hearings strategy, discovery, document gathering, interviewing witnesses , and attendance at trial. Florida follows the “American rule“.

Everybody pays their own attorneys fees —- maybe.

Two big exceptions to this Florida rule on Florida attorneys fees are the following – you can get the other side to pay your attorneys fees if there is :

a Florida statute, or
a contract which calls for the payment of attorneys fees.

Sometimes, these Florida laws which award you your attorneys fees are referred to as “fee shifting statutes.” Are they a big loophole in the law? Why don’t more Florida lawyers talk about them? You decide………………….

ATTORNEYS FEES AS A SANCTION

In Florida, once a lawsuit begins, there is an important fee shifting statute when one party takes a position that is frivolous.

Florida laws have a statute, section 57.105, which provides a method, a Florida procedure, for you, whether at trial, in litigation, or even before trial, to get your attorneys fees paid for from the other side — and the other side’s attorney’s!

This is a very unique statute, because it punishes both the other side, and their attorneys. Here is an overview of section 57.105 of the Florida statutes, which may guide you in seeking attorneys fees from a Florida lawsuit, under certain circumstances.

8 THINGS TO KNOW ABOUT FLORIDA STATUTE SECTION 57.10 — and getting the other side to pay your attorneys fees

you only get your attorneys fees paid if the other side takes a position which is frivolous – – without basis in law, or in the facts.
you have to first send a letter to the other side, demanding that they withdraw their frivolous position.
If the other side doesn’t withdraw its frivolous position within 20 days you need to file a motion —- referred to as, as you might have guessed, a 57.105 motion
the motion should be heard at a point in time when it is clear that the other side had no basis in fact, or under Florida law, to take the position that they did
at the beginning of a Florida lawsuit, parties are permitted to make allegations and to conduct limited discovery. While you may think their position is frivolous, the other side will be entitled to conduct limited discovery to learn the facts. Only after they learn the facts, will they be held to the standard that they may not maintain a frivolous position.
Attorneys fees under section 57.105 is a sanction for bad faith
a full-blown evidentiary hearing is required – – meaning you better be ready with evidence because in evidentiary or rehearing is another word for a small trial
the other side’s attorney’s will not have to pay one half of your fees if they can demonstrate that they acted in good faith — including arguing for and extension or expansion, or change, of existing law

GUN SHY LAWYERS WHO HIDE BEHIND 57.105

Anyone who handles enough litigation in Florida recognizes that some lawyers, typically lawyers who are not used to trying cases, throw around the 57.105 motion. Sometimes, lawyers who aren’t used to trying cases use the 57.105 motion as a way to attempt to intimidate your clients or you. The ironic part is, that the very use of the 57.105 statute, and its motion, can end up being in bad faith – – subjecting the attorney who’s hiding behind 57.105 to sanctions. While Florida statute 57.105 has been abused by some lawyers, consider this: experienced, and confident, and accomplished Florida trial lawyers will tell you that they rarely use section 57.105. They prefer to assemble the facts, apply the law, try the case – – – and win. This doesn’t mean that they won’t use their experience and knowledge to attempt to try to help you get your attorneys fees paid. There are other ways, other than 57.105, to get your attorneys fees paid.

FLORIDA ATTORNEYS FEES STATUES

This is particularly true in a Florida probate and trust setting. Florida has Florida probate statutes, and Florida trust statutes, as well as trial statutes, and the Florida Rules of Civil Procedure. There are mechanisms in place for you to try to get some or all of your attorneys fees paid from the other side — or from their inheritance. An experienced Florida probate litigator will discuss the chances, the probability, of you winning some of your attorneys fees from the other side, and vice versa– you may have to pay the other side’s attorney’s fees and costs if you lose.

FOR ATTORNEYS AND LITIGATORS

This commentary was prompted by a fourth District Court of Appeals case regarding a Broward County, Florida trial. The opinion of the Florida appeals court was issued on August 28, 2013, and a complete copy of the opinion is available by emailing Michelle@pankauskilawfirm.com . Regarding attorneys fees, trial lawyers and those involved in Florida litigation are familiar with what is commonly called the “offer of judgment” statute, which provides attorneys fees, under limited circumstances, if the other side refuses a reasonable settlement offer. Additionally, a Florida court, a sitting Florida judge, at any time, even upon its own motion, may award you your attorneys fees if the other side is acting in bad faith. For an understanding of the “bad faith” concept, please refer to the Bitterman line of cases.