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If I Sue and Win Can I Recover My Attorney's Fees?

While the short answer to this question is maybe, the more complete answer starts with what is know as the "American Rule." The American Rule is: attorneys' fees are not recoverable except as permitted by express statutory allowance, a clear contractual agreement of the parties, or some other established exception permitting attorney's fees in a given situation. This rule is embodied in Pennsylvania Law at 42 Pa. C.S.A. § 1726(1).

The first exception to the rule is enacted in statute at 42 Pa.C.S.A. § 2503 which sets forth the limited classes of matters in which reasonable counsel fees may be recovered.

The second exception is established by contract language between the parties. This exception is often expressed in written contracts in default clauses regarding the non-payment of charges and where a party suing for unpaid charges expressly reserves the right to recover attorneys' fees.

The third exception is almost always expressed in a statute. Prime examples are statutes establishing a "common fund" for the recovery of legal fees, and statutes such as those governing civil rights where the aggrieved party is entitled to recovery of attorneys' fees should he/she prevail in seeking legal redress of a civil rights claim.

The burden of proving entitlement to attorneys' fees is on the party claiming such entitlement. This means that you must state a claim and the basis for the claim for attorneys' fees in the complaint. Then, the claim must be supported by either statute, case law, or facts in order for a trial court to make a determination for awarding fees. In many cases involving statutory authorization of counsel fees, the court's determination is discretionary and will not be reversed on appeal if the findings are supported on the record and there is no evidence of abuse of discretion.

Finally, if the parties achieve a settlement, whether under court supervision or not, it is advisable to calculate your estimated legal fees into any negotiation over the final settlement figure. If court supervised, it will be unlikely that a party will recover the true cost of legal fees within the terms of the settlement.

As a contracts lawyer, I have to emphasize that if you do not have express, clear, and unequivocal language in your contract that entitles you to recover your attorneys' fees, then you are going to have to make very tough decisions about filing lawsuits for breach of contract. In many cases, the final cost of litigation may well outstrip the recoverable damages.

This letter has been prepared for informational purposes only and should not be considered legal advice. The furnishing of this information is not intended to create, and receipt does not constitute, a lawyer-client relationship. You should not act upon any information provided in this letter without seeking professional legal advice.

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Law Offices of Maribeth Blessing, LLC
310 Huntingdon Pike
Rockledge PA 19046-4445

Telephone: 866-603-8691
Telephone: 215-392-0849
Fax: 215-663-9019

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