In Washington State, where I practice law, the general rule is that each side must pay their own attorneys' fees unless one of the exceptions to the rule applies. And, there are only a few exceptions to this rule.
Contractual Attorneys' Fee Provision - If the written contract states that the prevailing party will be awarded attorneys' fees, the judge or arbitrator will award attorneys' fees. If the contract is silent on attorneys' fees, the judge or arbitrator will only award attorneys' fees if one of the other exceptions applies. But, judge and arbitrators will commonly award "reasonable attorneys' fees" and the amount awarded will often be less than the actual attorneys' fees incurred. Be sure to talk to your lawyer about this issue so you understand it at both the contract drafting stage and at the pre-litigation decision making stage.
Statutory Attorneys Fees - There are quite a few statutes in Washington that allow for the recovery of attorneys' fees. For example, the Washington Law Against Discrimination allows the party claiming injury (not the defendant) the right to recover reasonable attorneys' fees. Similarly, the Washington Consumer Protection Act allows the consumer the non-reciprocal right to recover reasonable attorneys' fees.
Court Rule Attorneys' Fees - There are a few court rules that authorize the court to award attorneys' fees during a lawsuit. For example, Rule 37 of the Washington Court Rules authorizes the court to award attorneys' fees to a party who is forced to bring a motion to compel their opponent to engage in discovery. This is a sanction that the obstinate party is forced to pay for not following the rules of discovery.
Recognized Basis in Equity - In rare cases, a party can recover attorneys' fees from a party who engages in bad faith litigation conduct. There are three types of bad faith litigation conduct: 1) pre-litigation misconduct, where a party engages in bad faith conduct that wastes private and judicial resources and forces a legal action to enforce a clearly valid claim or right; (2) procedural misconduct, where a party engages in bad faith conduct during the course of the lawsuit; (3) substantive bad faith, where a party intentionally brings a frivolous clam, counterclaim or defense for an improper motive such as harassment.
Common Fund - Another equitable basis for recovering attorneys' fees is where a party brings an action and creates or preserves a common fund for the benefit of others as well as the party bringing the action.
So there you have it. These are the exceptions to the rule that each side must pay their own attorneys' fees in Washington State.
Mark D. Walters | Copyright 2015
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