Laws Let Others Foot Your Attorney Bill

Wouldn’t it be great if a lawyer worked for you for free? Sound impossible? Perhaps it even seems unfair for a lawyer not to get paid for work. But that’s what happens in contingency fee cases.

Even more interesting is when your lawyer gets paid and you are not the one that does the paying.

You may have heard that the party who wins a lawsuit is entitled to have his “costs” paid by the losing party. That’s generally true. But contrary to what many people may assume, costs in this sense do not mean attorney fees.

The rule applies only to items such as the fees for filing and serving court papers, and the transcription charges of a court reporter.

That’s the general rule in American courts, but it is changing as more and more statutes provide for an award of attorney fees to the winning party.

A recent opinion by the California Appellate Court interpreted a provision in the Song-Beverly Act, better known as the “Lemon Law,” to mean that the prevailing party may include attorney fees in the award of costs.

In other words, the defendant really pays the plaintiff’s lawyer.

Of course, if the plaintiff loses, the defendant does not pay the bill. That doesn’t necessarily mean the plaintiff will pay either.

If the plaintiff has a contingency fee arrangement with his lawyer, the lawyer is paid only if the lawyer wins.

There are many state statutes that provide for an award of attorney fees to the successful plaintiff or to the prevailing party (so the defendant could have the plaintiff pay).

Some of them involve fairly technical types of lawsuits, but some are more common.

They include an action for the recovery of wages lost due to discrimination, an action against surety on a government contractor’s bond, a lawsuit under the Automobile Sales Finance Act or one for violation of the Collection Agency Act.

In addition, on the federal level, there are more than 150 statutes that authorize mandatory or discretionary awards of attorney fees.

When you consult an attorney about a possible lawsuit, be sure to ask whether your case comes within any legislative provision that permits the shifting of fees from one side to the other.

There are other ways to shift attorney fees. Many contracts include a standard or “boilerplate” provision that says the prevailing party will be awarded attorney fees in the event of a lawsuit.

A customary provision in a lease once provided that the landlord could recover fees if the landlord prevailed, but said nothing about the tenant. But a state statute modified that provision.

Now, any attorney fee provision applies equally to both parties.

Most legal bills still are paid by the client. But the question of who should pay for what kind of legal claims is one that law professors continue to debate.

If such a provision applies to your case, it can save you a lot of money.