Recovery Of Attorney Fees And Litigation Expenses

Some of the clients that I defend in court ask whether, if we’re successful, they can recover attorney fees and expenses.  The answer is usually not.  The parties to a personal injury or wrongful death claim, motor vehicle accident claim, dog bite claim, defective product claim, construction defect claim, nuisance claim, or insurance law claim generally are responsible for their own attorney fees and expenses.

The general rule is that parties to a lawsuit are responsible for their own fees and expenses.  One exception to that rule is when there’s a contract between the parties that states that the loser has to cover attorney fees and expenses if litigation occurs between the parties.  Those contracts are rare though.  Without one, it’s extremely difficult to recover attorney fees and expenses.

If a lawsuit is so lacking in facts or law to support it, you may be able to convince the judge to “sanction” the parties and lawyers who filed the suit.  Sanctions can include an order that the opposing parties or their lawyers, or both, have to reimburse you for the attorney fees and expenses that you incurred defending the frivolous action.  Judges don’t often sanction parties because there’s usually enough legal or factual support to justify the lawsuit that sanctions are deemed inappropriate.  The mere fact that you win the case does not by itself mean that the suit was frivolous.

There are also two legal claims available that you can bring against the opposing parties and their lawyers: malicious prosecution and abuse of process.  Again though, I have to state that these claims almost always fail because they’re very difficult to prove.

For malicious prosecution you have to prove that  you were the target of a previous lawsuit filed by the opposing party, that you won that lawsuit, that the lawsuit had no factual or legal merit, and that the opposing party acted maliciously in filing the lawsuit.  Abuse of process is slightly different and, as the name suggests, focuses on the use of the courts for an improper or unauthorized purpose with an impermissible or illegal motive.

If you have been sued under a statute, that law may require the plaintiff to cover attorney fees and expenses if you win.  An example of such a statute is Iowa’s Landlord and Tenant Act.

I can help you with any business or contract matters that may arise in which you believe that you were the target of a wrongful suit and wish to try to recover your attorneys and expenses incurred in defending that suit.  Please jurt give me a call.


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