The Edmond Sun

November 9, 2012

Attorney fee recovery not always in the cards

Matt Hopkins
Special to The Sun

EDMOND — Q: I need to file a lawsuit, but am worried about the expense. Can I make the other side pay my attorney fees?

A: Many factors go into deciding whether to file a lawsuit. The first thing you need to do is make sure you have a valid claim for which you are entitled to relief.  A bad claim not only can clog the judicial system with an unnecessary lawsuit, but can expose you to significant expense — perhaps even attorney fees to the other side if you lose.

Once you know you have a valid claim, the cost of the lawsuit is usually the biggest factor to evaluate. Consider here not only the money you may spend, but the time you will have to invest in the litigation. Lawsuits take time, and can take on lives of their own in ways that can seriously impact your daily existence. But sometimes litigation is necessary. If you take that step and ultimately win the lawsuit, will the other side be liable for your attorney fees?

Here the judicial world is split in two. Some jurisdictions follow the English Rule, which provides that the victor generally recovers his attorney fees. Most jurisdictions, though, including Oklahoma, follow the American Rule. The American Rule breaks from the tradition of the judicial motherland to say that each party pays its own fees regardless of who wins. Of course, like many rules of jurisprudence, the American Rule might be considered more of a guideline than a rule. That is to say, there are exceptions.

Oklahoma law provides two main exceptions to the American Rule. If the lawsuit is based on a contract that says the winner of a lawsuit gets attorney fees, you will recover your attorney fees if you prevail. In addition, if the Legislature has provided that the prevailing party in your type of case is entitled to fees, the court will award your fees if you win.

Oklahoma statutes allow attorney fees to the victor in a number of actions. If you win a lawsuit for unpaid labor, on a note or open account, for payment of a check returned for insufficient funds, for injury to property or to enforce a warranty, you are generally entitled to attorney fees. Numerous other exceptions apply. To determine whether your claim entitles you to attorney fees if you win, you should consult an attorney before filing suit.

    

MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to questions@lldlaw.com.