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Attorney Fees - prevailing party

Los Angeles, CA |

A contract allows for prevailing party to receive attorney's fees. Part of the reason said party's (the prevailing party) attorney fees are so high is because their attorney made a lot of mistakes (i.e. opposing party's demurrer's, motions to strike, etc., granted because of prevailing party's attorney's mistakes). QUESTION: Does the prevailing party have a right to collect for all their attorney fees even where such fees would have been lower except for the prevailing party's attorney's mistakes? In other words, should the losing party be responsible for the opposing party's attorney mistakes in the form of paying for their attorney fees arising from said mistakes?

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Attorney answers 3


The prevailing party has the right to collect "reasonable" attorney's fees. What you might consider to be mistakes might not really be mistakes, but rather, strategy. It will be up to the court to determine the amount of reasonable attorney's fees. You will have the opportunity to file an opposition to the motion for attorney's fees and point out where and how the court could reduce the amount of fees being claimed.

Once the court determines who is the prevailing party, the court has discretion in determining what constitutes reasonable attorney’s fees. Typically, the judge considers the time the attorney has spent on the case, and the nature of the litigation, its difficulty, the amount involved, the skill required and employed, the attention given, the success of failure, and other circumstances of the case." (Serrano v. Priest (1977) 20 Cal.3d 25, 49, Nightingale v. Hyundai Motor Am. (1994) 31 CalApp.4th 99, 104.)

Among the factors which the court considers are the following: the complexity of the case, the number of parties, the extent of discovery required, the reasonableness of the time allotted to the various tasks specified in the attorney’s billing records, the amount of the fees claimed relative to the case, the extent to which the party’s litigation objectives were achieved, whether the hourly fee claimed is within the range of fees typically charged by other attorneys in the community, and the attorney’s expertise and experience.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.


I agree with Mr. Chen, the point of reference is "reasonable." I will add only one thing to his comprehensive response, that often fees can be negotiated to spare the time and expense of another round of litigation. Like all negotiations, both parties generally need to compromise something they might otherwise obtain from a ruling on the merits, but it can simplify matters if both parties are willing to work in good faith. Obviously that is not always an option.

Good luck.

I have been licensed to practice in the State of Oregon since 1990. I am not offering legal advice regarding your question, only general information regarding the law. You are not my client nor am I your attorney unless we sign a retainer agreement.



my attorney didnt want to ask for a memorandum of costs he said that was not necessary and for me to suck it up and go to the opposing party and pick up my bill and pay it my attorney is unethical and a bully. Should he have helped me with thi swhat can I do the other side that won wants me to give them 7k in attorney fees


Generally only "reasonable fees" can be collected. If the amount of the fees is disproportinate to the amoutn recopvered or the amount in issue, or was the rsult of duplication or mistakes, that should be pointed out to the court in a motion to tax costs. That must be filed ina timely fashion, so if you are the opposing party, your attorney should act quickly once the Memorandum of Costs is filed.