In most contracts, there is a provision for attorney’s fees, sometimes called a prevailing party clause. This provision states that if legal action must be taken to enforce the contract, the prevailing party will get its attorney’s fees and costs paid by the losing party. Under Florida law, attorney’s fees are contractual or statutory, meaning that this provision must be included in contracts or statutes to be enforced. Because of this, it is important to include an attorney’s fees clause in any contract in Florida.
Some contracts may have language that makes the attorney’s fees provision unilateral, meaning that only one party to the contract would benefit from the attorney’s fees language. Unilateral attorney’s fees are not enforceable in Florida. If there is language about a party paying the other party’s attorney’s fees in the event of a dispute, that clause must be reciprocal.
Should There Be An Attorney’s Fees Clause in My Contract?
An attorney’s fees clause serves as a tool to avoid frivolous lawsuits. Having an attorney’s fees clause might prevent a party from suing over a minor dispute if there is a possibility of paying for the other party’s costs at the end of the lawsuit. This promotes more amicable dispute resolution, rather than defaulting to a lawsuit every time parties disagree.
Attorney’s fees clauses also promote prompt litigation. The more drawn out a lawsuit is, the more expensive it becomes. If the parties know that one side will have to pay the other’s attorney’s fees, the parties will be motivated to move litigation along in a timely manner.
What is a Prevailing Party in Florida?
A prevailing party is the winner of a lawsuit or other legal dispute. Although the concept of a prevailing party seems straightforward, the winner of a complex lawsuit is not always clear. Leaving the term “prevailing party” undefined in the attorney’s fees clause leaves more room for interpretation in cases with complicated outcomes.
Can I Counter-Sue for Attorney’s Fees?
In Florida, attorney’s fees are only enforceable under contract or statute. This means that you must have an attorney’s fees clause in a contract for the court to enforce it or the statute that you are suing under provides for attorney’s fees. Some Florida statutes that provide for attorney’s fees include the Deceptive and Unfair Trade Practices Act and Fla. Stat. §57.105.
