March 2nd, 2015

Should I Sue? Things A Litigant Should Know About Recovering Attorneys’ Fees

There are few things as certain as death and taxes.  One certainty is that litigation is expensive.  In deciding whether to pursue a lawsuit, prospective clients frequently ask whether they can recover attorneys’ fees if they prevail at trial.  More often than not, the answer is no.  Nevertheless, there are limited instances when attorneys’ fees are recoverable.

Contract Provision:

Attorneys’ fees are recoverable if a fully executed contract explicitly provides for such recovery.  For example, standard lease agreements typically provide: “in the event that any action or proceeding is brought to collect unpaid rent or to recover possession of the premises, landlord shall be entitled to recover reasonable attorneys’ fees and costs associated with such action or proceeding.”  As a result, a prevailing landlord would be able to recover attorneys’ fees.

Statutory Provision:

Attorneys’ fees are also recoverable if a statute explicitly permits such recovery.  For example, the Pennsylvania Unfair Trade Practices and Consumer Protection Law specifically provides that the “court may award to the plaintiff…reasonable attorney fees.”  Most of the time, these statutory provisions give the court the discretion as to whether attorneys’ fees will be granted.  Courts are generally reluctant to exercise that discretion and prefer to have each party bear its own litigation costs and attorneys’ fees.

Dilatory, Obdurate or Vexatious Conduct:

Finally, attorneys’ fees are recoverable where an opponent is participating in “dilatory, obdurate or vexatious conduct.” In other words, attorneys’ fees may be recoverable if an opponent is litigating in bad faith, perpetrating fraud, dishonesty or corruption upon the court system.  Even though litigation can be incredibly contentious, this is an incredibly difficult standard to prove.  Typically, it takes a willful violation of court order for a court to order the payment of attorneys’ fees.

Prospective litigants should keep these principles in mind as they weigh the costs and benefits of litigation.


Zachary Fowler provides litigation support to businesses of all sizes in matters concerning employment discrimination, contract disputes, and medical malpractice defense. He also practices media and publishing law, working with advertising and publishing companies in the preparation of independent contractor agreements, licensing agreements, and non-disclosure agreements.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.