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I am a plaintiff in a personal injury case. I have an attorney representing me on contingency basis.

Granite Bay, CA |

I was told that if I loose my case, I will not be liable for the fees of the defendant's attorneys. But my attorney had included other issues of breach of contract in the personal injury case.

1. Would this still be considered a personal injury case?

2. How are personal injury cases defined?

3. In civil cases in general, when a plaintiff looses a case that has strong merits, is the plaintiff liable for the fees of the defendant's attorneys?

4. In personal injury cases, is the plaintiff's contingent-fee based attorney liable for fees of the defendant's attorneys?

5. In personal injury cases, if the plaintiff's case was dismissed in pretrial motions before the case reaches a trial, is the defendant and/ or his contingent-fee based attorney liable for the defendant's attorneys?

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Attorney answers 9


Not being privy to the actual retainer agreement you signed with the attorney, i would suggest having them answer these questions personally. That way there is absolutely no confusion on either side when it comes to your representation. You need to get these questions answered so you feel comfortable with your lawyer.


1. More facts are needed.

2. Have you asked your attorney? If not, do so.

3. Depends on the type of case. (For example, if it's a breach of contract case, and the underlying contract contains a provision stating something to the effect of "in the event of litigation, the non-prevailing party is responsible for the prevailing party's attorney fees," then yes).

4. No.

5. Do you mean is the PLAINTIFF "and / or his contingent-fee based attorney liable" for the defendant's attorney's fees? If so, then see #4 above.


"Loser pays" is very much a minority rule in the US, and applies to very few cases. Since you are represented by an attorney, you should direct these questions to your attorney for an answer specific to your case.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


Most cases in the United States are subject to the so-called "American Rule," which is that each side bears its own attorney's fees. This is in contrast with the "English Rule," which is "loser pays."

Some kinds of cases have attorney's fee provisions, which are usually set forth in a statute. For example, civil rights cases generally include an award of attorney's fees to the prevailing party.

Sometimes contracts provide for who has to pay whose attorney's fees if the matter is litigated. Review any contract that may apply in your case to see whether it contains such a provision.

In rare circumstances a judge may have authority to award attorney's fees.

This is general information about general principles of law and shouldn't be taken as legal advice. I don't practice law in California or hold California licensure. If you need legal advice, please consult a lawyer who does, as I practice in Vermont ONLY.


You should discuss these questions with your retained counsel. The "American rule" is that each side pays their own attorney fees, unless there is a fee shifting statute or egregious behavior which could shift the fees. Should you lose your case to the defendant, the defendant may be able to collect "taxable costs" from you. What constitutes a taxable cost tends to vary from state to state. Again, discuss these issues with your attorney.

Legal Disclaimer:

If this information has been helpful, please indicate below.

Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

This ans. does not create an attorney/client relationship.


I agree with the other posters: you should ask these questions of your attorney. Also, about fees-- jurisdictions and contractual situations are different, you really havent given us enough information to give an answer, but, in general there must be a law, rule or contractual provision to force the loser to pay attorneys fees. And, its pretty rare.


The only way you can be liable for attorneys fees to the opposing side is if recovery of attorneys fees is provided for by contract or by Statute? The lawyer is never personaly liable for attorney fees until it is in the form of sanctions by the court directly against the lawyer? If you have a civil case and you lose, you are still liable for the opposition's costs per CCP §1032; 1033.5; 1034.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.


The answers to your questions will be based on your fee agreement that you signed when you retained the attorney. Generally a contingent fee agreement allows the attorney to be paid a percentage of the recovery regardless of the types of claims alleged. The responsibility for costs is a more tricky answer because of provisions such as CCP 998. Speak with your attorney -- he/she can provide you with the answers to your questions.

I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.


This is a discussion to have with your lawyer.

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