Typically, a party winning a law suit is entitled to taxable court costs, such as filing fees, witness fees, costs to have a Summons issued, fees to serve the process or subpoenas, and the like. Other costs are not necessarily taxable against the loser: court reporter attendance fees, courier service, copy expense, long-distance phone calls, fax charges, and others. Awarding the cost of attendance of a Court Reporter at a deposition is discretionary with the Court, but the per page expense of each page of a transcript of the deposition introduced into evidence is taxable.
Legal fees are not considered to be a "cost", and different rules apply.
Who Is Entitled to An Attorney's Fee Award
In England, the winning party is awarded attorneys fees. The law in US differs. Here, attorneys fees are awarded only if there is a contract between the parties agreeing to entitlement to a fee, or a law authorizing a fee. In the absence of either an agreement or a statute, the party winning can not recover attorneys fees.
More than 200 Florida laws exist which authorizing award of attorney's fees. Some common statutes allowing the award of fees involve divorce, child and alimony support enforcement, residential landlord-tenant conflicts, suits against a person's own insurance company, workers compensation claims, bad checks issued, suits to recover unpaid wages, civil theft claims, failure to record a satisfaction of judgment, collection agency abuses, to name a few.
Even a LOSING party can recover attorney's fees! When a party rejects a settlement offer, goes to trial, wins, but does not get high enough an award fees can be awarded to the loser to offset the award.
Contingency Fee Agreements
A contingency attorney's fee is based upon an amount of recovery. There is no fee owed at all if there is no recovery. If there is a recovery, a certain % is applied for the fee. The Florida Bar has limits as to % may be charged. The Florida Bar requires contingency fee agreements to be in writing.
Contingency fee agreements are most common in negligence cases where there has been an accident or malpractice The attorney takings the risk of spending a lot of time but not getting a recovery, or a smaller recovery than anticipated. But, because there is usualy insurance for those cases, a lawyer knows that if his/her client wins in Court or reaches a settlement, payment will be made.
Lawyers are less likely to take cases on a contingency where there is no insurance, or there is little likelihood of actually collecting an award.
Contingency fee agreements are prohibited in Family Law cases, where the fee is based on the outcome, or in Criminal Defense matters.
Hourly Fee Agreements
Fees charged on an hourly rate are exactly that--a client pays a laywer for the time the attorney spends. The rate and the time must both be reasonable. Lawyers with less experience charge a lower rate as they need more time to do something lawyers with more experience would need. Lawyers with more experience are more efficient and take less time for some items, but charge a higher hourly rate based upon their experience.
Legal services encompass many aspects of representation. Appearances in Court, attendance at depositions, preparation of pleadings, those are obvious. Less obvious are other services rendered which can take clients by surprise, such as letters and phone calls to opposing parties and to the clients themselves. Lengthy voice mail messages are billable.
Abraham Lincoln is quoted as saying that a lawyer's time and advise are his stock in trade. Time thinking about the case is as billable as a legal service as making an argument in a courtroom to a judge.
Fixed Fee Agreements
A fixed rate fee is exactly that--a fee that is fixed at a particular amount regardless of whether the client wins or loses, and regardless of how much time the lawyer spends in a case.
Cases that are typical of a fixed rate fee are in Criminal matters.
Setting a fixed fee is a major gamble for both the attorney and the client. The attorney may be tempted to guess high when setting the fee. The client may wind up paying more money than if they had an hourly fee.
There is a benefit of certainty when a fixed fee is used. Both the attorney and the client know what the expense will be.
Having A Written Fee Agreement Avoids Misunderstandings
Regardless of the type of fee arrangement, having a written fee agreement clarifies what the fee is and how it is to be charged. While contingency fee agreements must be in writing, hourly and faxed rate fees are not mandatory.
The best procedure is to have a written agreement so as to reduce misunderstandings. Many cases take years before there is a resolution, and memories of what was said my change along the way. Having a written fee agreement will establish what can and can not be charged, and at what rate.
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