This protocol is commonly referred to as the American Rule because it modified its cousin, the English Rule, which granted fees to the winner in all civil cases. The example above is merely provided as a reminder that the general rule prohibiting the collection of attorney fees is not as inflexible as one might think. The appellate courts have followed Palma's example in holding that fees incurred when litigating for the amount of fees due are generally not recoverable in Florida. In this blog, Jay Fraiser, partner at Moorhead Law Group in Pensacola, Florida, writes about Florida's community partnerships and recovering attorneys' fees and costs when enforcing covenants.
The Court may award compensation to the prevailing party for non-payment of wages, the costs of the lawsuit, and the payment of reasonable attorney's fees. Recommended revisions to the “Standard Fees and Costs Provision” in Florida As stated above, Florida's substantive legislation leaves a significant amount of fees and costs potentially unrecoverable in accordance with a “standard” provision on rates and costs. While court fee and cost reductions are sometimes the result of perceived overbilling, overstaffing, or excessive fees, incomplete recoveries are often a function of Florida's substantive law and of the limitations of the “standard attorney's fees and costs” provision contained in the vast majority of contracts. Lawyers' fees spent on litigation or conflict resolution are contrary to U.S.
law and, as such, the contractual language that establishes the award of attorney's fees is interpreted strictly. The authors consider that, in general, the “long format” option is preferred when the possible amounts at issue in fee and cost disputes justify detailed and precise language to protect the interests of the parties to the transaction. But what about attorney fees and expenses related to pact enforcement actions that haven't yet resulted in a lawsuit? In addition, certain Florida laws provide for the recovery of reasonable attorney fees for the prevailing party. In contracts that are governed by Florida law, there is little justification for maintaining the language of “standard fees and costs”, except perhaps in the case of an unusual transaction in which the parties want the parties' disposition to prevail, but for some reason they do not want to ensure the fullest possible recovery of litigation expenses.
The authors believe that the sums that are often discussed in fee and cost disputes justify a rewriting of the provisions in force between the parties to, at a minimum, allow the recovery of the fees incurred in litigating the amount of the recoverable fees and the compensation of costs that would otherwise not be subject to taxation under the uniform guidelines. Initially, some attorneys may be concerned about the breadth of the language of the proposed form and the possibility that their clients will be evaluated with large fees and costs if, ultimately, they do not prevail in any dispute related to the contract. While there does not appear to be any Florida decision addressing whether the courts will enforce the text of contracts on express rates to pay fees, Palma's reasoning and the general principles governing the application of attorney's fee provisions in Florida strongly suggest that fee provisions are binding on the parties as long as the language is clear. In a business dispute of any size, the attorneys' fees spent litigating the amount of the fees, making the appropriate inquiries, and drafting the billing narratives, along with non-taxable expert fees, copying costs, and the like, can easily reach six figures.
