Can I Recover My Attorneys Fees? Maybe. It Depends.

When I first meet with a client on a new litigation matter, one of their first questions is how much is this going to cost. The second question is whether the party my client wants to sue is going to be responsible to pay for the attorneys fees. My answer to that question is always “It depends.” Both of these questions are legitimate questions. Litigation is expensive. Depositions are expensive. Attorneys cannot work for free. When my clients come to me and want to sue somebody, its because they are wronged. If they are wronged, they do not want to also have to be responsible for my fees in bringing the lawsuit.

Whether or not the defendant is responsible for attorneys fees depends on whether there is a contract which provides for attorney fee recovery or whether there is a statute which provides recovery of attorneys fees as part of the damages. Let's walk through both instances.

You come to me because your boss owes you wages and is refusing to pay you what you are owed. You want to sue your boss for the wages. Can you recover your attorneys fees if you win in court? The answer is yes, because under the Illinois Wage Payment and Collection Act, if an employer is found to have wrongfully withheld wages to an employee, the employee may sue not only for the wages, but his attorneys fees and costs in having to bring the action. It was the lawmaker's way to try to encourage attorneys to file suit if necessary against employers, and it also was a way to encourage employers to pay their employees, so not to be sued for wages. Several city, state and federal statutes, like discrimination statutes, landlord tenant statutes and employment statutes allow for the plaintiff to recover his attorneys fees as a way to balance power.

You are a painting contractor. You are hired by a homeowner to paint her house. You have her sign a contract that says on there that you can recover your reasonable attorneys fees and costs if the customer fails to pay. The homeowner pays the down payment called for in the contract, but fails to pay you at the end of the project because she doesn't like the color of the paint. You come to me to sue her for the remainder. Since your contract allows for recovery of your attorneys fees and costs, you can recover them if you win at trial.

You come to me because you are a contractor and you performed work on a building for a general contractor. The contractor did not pay you, and you are out several thousand dollars. You have an oral contract with the general contractor, with nothing in writing. You did not record a lien on the property. You can sue the general contractor and recover on an oral contract, but you cannot recover any of your attorneys fees, because there is no statute that protects you, and no contract provision that allows you to recover your attorneys fees.

You come to me because you are a homeowner. You hire a painter to paint your house. You pay the down payment, but the painter does a bad job painting your house. You refused to pay the painter at the end, showing him the issued you have with the work. You have a contract with the painter. It says that if there is a lawsuit with regards to the contract that “the prevailing party shall recover its reasonable attorneys fees”. Can the painter recover its fees? The answer is yes if he wins at trial. But so can the homeowner if the court finds in his favor. The contract allows for the winner at trial to be awarded his fees.

So the takeaway is that if you are in a position to provide your customers a contract, make sure it has language in it that allows you (not your customer or the prevailing party) to recover your reasonable attorneys fees and costs if you have to hire me to sue your customers. Look at your contract today to see if that language is in there. If it is not, call us.