LEGAL GUIDE
Written by attorney Nick Passe

When and how can I recover attorney's fees in Wisconsin?

The Wisconsin State Legislature has adopted rules governing when and to what extent a party to litigation is entitled to recover attorney's fees from the other party. This is an oversimplification, but Wisconsin generally follows what is known as "the American Rule", meaning the parties bear the cost of their own legal counsel. This rule is modified somewhat by Wisconsin Statutes Section 814.04. This statute sets the recovery of attorneys fees in most actions to a very small amount, usually less than $500. There are many important exceptions to this general rule.

I have attempted to aggregate as many of the exceptions to the rule as I could find and list a descriptive name along with the relevant fee-shifting statute below. At the bottom of this guide I have provided a link to the Wisconsin State Legislature's searchable database of statutes. Please know that while this list is an effort at identifying as many fee shifting statutes in Wisconsin as possible (please send suggestions for additions, deletions and changes to the guide to [email protected] (mailto:[email protected])), even I do not believe it is an exhaustive list.

If you have a case you are involved in or you may soon be involved in litigation, you should consult with at least one attorney to determine what full representation might cost, whether a limited representation might be available, what the risks and benefits of any representation might be, what the risks and benefits of proceeding through the litigation unrepresented might be and if there might be ways of recovering any attorney's fees you if you are successful in your lawsuit. Attorneys trying to determine if there are cost-shifting provisions available for a certain case should consult with other attorneys in the practice area if a search of the relevant statutes has not turned anything up. I hope to improve the list of cost-shifting provisions below in the future so I am especially hopeful that you attorneys reading this list will offer suggestions for additions, deletions and changes to the list to me at [email protected] (mailto:[email protected]) - thanks!)

Important Update - December 2011:

In November 2011, the Wisconsin State Legislature met, ostensibly to address the high unemployment rate in the state, and passed a large number of new laws. One of these new laws created Wisconsin Statutes Section 814.045. This statute puts a presumptive cap on attorney fee awards for all cases in which actual attorney fees can be awarded. Judges in Wisconsin are required to presume that reasonable attorney fees do not exceed 3 times the amount of any compensatory damage award. However, judges are able to consider a laundry list of factors in determining if that capped amount is reasonable. For cases seeking injunctive relief (a court order that something happen), this presumptive cap does not apply. The severity of the effect of this new law is uncertain, but there are good reasons to believe it will effectively gut the ability of many plaintiffs to remedy certain wrongs because attorneys will not feel confident of their ability to receive fair compensation when they prove their cases. For example, a landlord who unlawfully withholds a $300 of a tenant's security deposit probably does not need to worry about being sued in small claims court because attorneys will know that the representation will not likely be economical even if the case is solid because if the landlord makes the litigation even a bit time-consuming for the attorney, the effective hourly rate the attorney recovers will be quite low.

Thank you for reading through this primer. Please know that this guide is not legal advice and no attorney/client privilege has been created by the reading or use of the guide. Law can and does change over time. You should always seek the legal advice of an attorney before making any important legal decisions. If any of the statutes below look like they might be applicable to your case, I encourage you to look at the actual text of the statutes by looking up the statutes through the link to the Wisconsin State Legislature web page link below and then going to the relevant statute. Even if you believe you have found a statute that is directly on point, I still advise you to seek the advice of an attorney before making any decisions regarding representation. If you have found value in this guide, I encourage you to leave positive feedback. If you believe you have a claim which you can assert which might allow you to recover attorney's fees from another party, I would be interested in speaking to you over the phone or in person at my office in La Crosse. Even if hiring an attorney from La Crosse might not make sense, I may be able to refer you to an attorney or attorneys in your part of the state who are equipped to handle your case.

Wisconsin Attorney fee shifting statutes

100.171 – prize notices

100.177 – fitness center and weight reduction center contracts.

100.18 – fraudulent representations

100.20 unfair trade practices

100.201 unfair trade practices in the dairy industry

100.54 credit report confidentiality and use violations

100.55 illegal use of consumer loan information for making solicitations

968.31 Illegal Wire intercepts or surreptitious recording of other communications

17.14 Removal of County Board Members and members of Boards of Review

19.37 Open Records / Public Records enforcement

19.97 Open Meetings enforcement

20.931 Medical Assistance fraudulent claims enforcement

32.28 (& 32.17) eminent domain

38.50 Educational Approval Board (higher ed. accreditation and naming issues)

46.90 Elder-at-Risk / Elder Abuse record confidentiality violations

48.236 Court-Appointed Special Advocate (“CASA") confidentiality violations

49.49 Medical Assistance fraud, kickbacks and bribes

51.30 Chapter 51 case court record and treatment record confidentiality violations

51.61 Chapter 48, 51 or 55 patients’ rights

55.043 – Chapter 55 Protective Service System record confidentiality violations

66.0903 – Municipal prevailing wage and hour scales

66.0904 – wage rates for publicly funded private construction projects

75.35 – sale of tax-deeded lands

100.18 fraudulent representations

100.20 unfair trade practices Important: This section allows for recovery of violations of all kinds of administrative code rules including home improvement contracts, landlord/tenant rules, automotive repair rules and many, many other rules adopted by regulatory agencies in the state.

101.13 public accommodation accessibility requirements benefiting disabled persons

102.13 requirement to produce records in workers compensation case

103.10 Family and Medical Leave Act (“FMLA") violations

103.43 Fraudulent advertising for labor

103.49 wage rate on state work enforcement actions

103.88 discrimination against volunteer firefighters and other emergency personnel

106.50 Housing equal rights violations

106.52 Public Accommodation antidiscrimination actions

115.80 Due process hearings for children with disabilities (individualized ed. programs)

115.997 Interstate compact on educational opportunity for military children

125.33 restrictions on dealings between brewers, brewpubs, wholesalers and retailers

129.08 fine art consignment contracts and trade practices

132.033 Trademark misuse injunction actions 134.23 Motion picture trade screening requirements

134.34 Duplication of vessel hull and parts

134.90 Uniform Trade Secrets Act violations

134.93 Payment of commissions to independent sales representatives

135.06 Dealership practices (Wisconsin Statutes Chapter 136) enforcement

138.052 Residential mortgage loan law violations

138.14 Payday loan law violations

146.84 Patient health record / medical record confidentiality violations

157.70 Burial site disturbing violations

218.0163 finance company or collections law violations

224.80 Mortgage bankers, loan originators and mortgage broker laws (224.71-.83)

230.85 State employee employment rights employment action (see 230.80-230.89)

244.20 Refusal to accept or bad faith assertion of power of attorney documents

252.15 HIV testing violations (consent, confidentiality)

253.10 Voluntary and informed consent for abortions

283.91 Pollution law violations

321.65 Reemployment rights after national guard, state defense or public health emergency service

321.66 Reemployment rights surrounding leave for civil air patrol service.

426.110 Chapters 422-427 Wisconsin Consumer Code statutes

429.301 Motor Vehicle Consumer Lease (Wisconsin Statutes Chapter 429) violations

551.509 Securities fraud and dealing securities without proper licensure

610.70 Obtaining medical information from an insurer or insurance support entity under false pretenses

767.553 Bad faith determining an annual child support adjustment

767.805, 767.89 Paternity actions

802.05 Sanctions for improper pleadings

805.03 Failure to prosecute or comply with procedural statutes

812.38 Bad faith by either side in a garnishment proceeding

812.44 Use of misleading forms in garnishment proceedings

814.04 Statute setting statutory attorney’s fees

814.245 Unreasonable actions brought by state agencies

823.075 Forestry operations falsely accused of being nuisances

895.035 Recovery from parents for acts of minor child

895.09 Scrap metal theft

895.444 Criminal gang activity statute

895.446 Property damage or loss caused by crime

940.302 Human Trafficking

943.245 Worthless checks

943.48 Telecommunications fraud or theft (stealing cable or phone service)

946.87 Racketeering

948.051 Trafficking a child

995.50 Right to privacy violations

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