By Jedidiah McKeehan
You’ve heard the phrase, “I want to be awarded attorney’s fees,” in regard to litigation. But what exactly does that mean and when does it apply?
Generally, in the state of Tennessee, attorney’s fees are not recoverable unless you have entered into a contract which states that they are recoverable. That means you are typically responsible for paying all legal fees, even if you win the court case.
What we are talking about is different from a personal injury or worker’s compensation case. Attorneys know and understand that their fee is getting paid to them at the conclusion of the case. And in those cases there isn’t a separate “attorney’s fee,” award. There is a lump sum award which the attorney takes a percentage of the total amount.
So, what types of situations might call for a contract to allow for attorney’s fees to be recoverable? Here are a few:
- Property lease
- Business contract
- Credit card you have signed up for (business or personal)
- Relationship with a doctor or dentist
In all of these contracts, there is typically an attorney’s fee provision that states something to the effect of, “If litigation is required to enforce the terms of this agreement, attorney’s fees and all reasonable and necessary costs are recoverable.”
There are many more instances where attorney’s fees might be included in a contract, but these are the most common.
How exactly does that work at a practical level?
If I want to sue someone I was in a contract with, a contract that includes a provision for the recovery of attorney’s fees, then I would need to hire an attorney to file the lawsuit.
That means I would have to pay the attorney’s fees upfront in order to sue the person who has breached the contract.
If I win the case, I would then receive:
- Whatever the judge awarded me for the breach of the contract, and
- Reimbursement of the attorney’s fees which I paid.
However, keep in mind that while your contract may say that you are entitled to attorney’s fees, it is still up to the judge to decide whether he wants to award them to you or not. If a judge believes that the amount of attorney’s fees requested is unreasonably high, he may not award them.
If you are unclear if your contract includes the ability to recover attorney’s fees, then you may want to seek your own counsel or ask questions of the other party. Don’t sign a contract without being clear on what you may have to pay if someone sues to enforce the terms of the contract.
Are There Any Other Instances When Attorney’s Fees Are Recoverable?
Yes, there are a few. If you sue under the Tennessee Consumer Protection Act, you may be able to recover attorney’s fees. In a divorce case, you can sometimes get attorney’s fees awarded, but not very often. There just are not many instances in Tennessee law where they are recoverable under than those spelled out above.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including criminal, personal injury, landlord-tenant, probate, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.