Attorney Fees: Does the Losing Side Have to Pay?

Learn why the losing party only pays the attorney fees of the winner when required to by contract or statute.

By , Attorney University of the Pacific McGeorge School of Law
Updated 10/31/2023

If you've sued someone or have been sued and are wondering who pays legal fees in civil cases, you've asked a good question. While many people believe that the person who loses a case must pay the winner's legal fees, that isn't always the case, and it certainly isn't automatic.

Even though the person losing a lawsuit doesn't automatically pay the winning side's attorney's fees, when it happens, it's costly. It's common for an attorneys' fee award to exceed tens of thousands of dollars, or even more if the losing side must pay court costs and expert fees. Keep reading to learn who pays attorney fees and court costs and when you might get stuck with the bill.

Losing Lawsuits and Paying Attorneys' Fees

If you suspect you might have to pay the other side's attorney fees if you lose a lawsuit, that might indeed be the case. But it isn't guaranteed. The rule for attorneys' fees is that each side must pay their attorneys' fees unless a contract or statute allows an award of attorney fees.

A losing party pays attorney fees only if the winner is specifically given the right to recover legal fees in a contract between the parties or through a state or federal law. Learn about preparing a defense in Disputing a Small Claims Court Case: Fight Back.

Attorneys' Fee Clauses in Contracts and Statutes

Understanding your liabilities under the second part of the rule is essential. After a lawsuit, a judge can award attorneys' fees and other allowed costs when a contract or statute authorizes it.

Contracts often have clauses allowing for the recovery of attorneys' fees, and many statutes allow awards, too. It's best to assume every case has the potential for an attorneys' fee award until you know otherwise.

Researching Attorney Fee Awards in Lawsuits

Knowing the full scope of liability is essential when deciding whether to file or settle a lawsuit, and you won't know your potential risk without research. Your lawyer should tell you whether you could be liable for attorney fees and other expenses early in the litigation. However, because so many cases settle before trial, not all lawyers think about the attorneys' fees and costs issue until it's too late, so be sure to ask.

Example. You meet with a lawyer about suing your homeowner's association (HOA) after they denied your request to build an addition. After you learn how much the suit will cost, you decide to move forward and sign a retainer. However, the next day, your new lawyer calls and explains that the association's governing documents include an attorneys' fee provision. You also learn attorneys' fees in HOA litigation can run over $100,000. After assessing the potential risk, you decide to forgo litigation and be content with your home's size.

Consequences of Not Doing Attorney Fee Research

The harsh reality is that many people face bankruptcy after losing a lawsuit. Sometimes, it happens when one party passes on a reasonable settlement opportunity without considering potential attorney fee awards and finds themselves owing much more than anticipated. You'll find a lengthier discussion below in the "Filing for Bankruptcy When You Can't Afford Attorneys' Fees" section.

Learn why you should consider filing for bankruptcy shortly after being sued.

How the Court Assesses Attorneys' Fees After a Losing Lawsuit

The winning side can ask the court to reimburse the winner's fees and costs at the end of a lawsuit. The award isn't automatic. The winning side must prove the claimed legal services were incurred with invoices and explain whether the requested fees are allowed per contract or by statutory law. If the lawsuit winner's proof meets the judge's satisfaction, the judge will order the loser of the lawsuit to pay the winner's attorney fees and other allowed costs.

More on Attorney Fees After Losing Lawsuit

Below, you'll find more specifics about lawsuits and attorneys' fees along with helpful examples.

Contractual Attorneys' Fees Provisions

It's common for attorneys' fees to be awarded in breach of contract cases when the contract requires the losing side to pay the winning side's legal fees and costs. Most business contracts contain attorneys' fees provisions. You can also count on contracts involving real estate to include them, leasing agreements, and many others.

Courts must enforce the provisions unless a compelling reason exists not to. However, such cases are rare, and you'd likely want it evaluated by a lawyer. Learn about bringing a breach of contract case in small claims court.

Example. After trial, the prevailing party completed the form to request allowed expenses and costs and submitted it to the court. The other side filed an objection to the attorneys' fee portion. The prevailing party rebutted the objection by submitting a copy of the contract. The judge determined the clause was valid and included an attorney fee award in the judgment.

Statutory Attorneys' Fees Provisions

Many states have specific laws that require the losing side to pay the winning side's legal fees in certain situations. For instance, some states have laws requiring the losing side to pay attorneys' fees in lawsuits involving government entities or antidiscrimination laws. Other statutes allow attorneys' fees awards in the following cases:

  • lawsuits enforcing public interests, such as accommodations under the Americans with Disabilities Act
  • frivolous lawsuits without merit filed for the sole purpose of harassing the defendant or to delay court proceedings, or
  • some family law proceedings.

Example. Before trial, the court ordered the litigants to mediation. At mediation, the defendant refused what the mediator considered a fair settlement offer in light of the defendant's somewhat weak case. The defendant wasn't motivated because the case value was less than $20,000. The tables turned when the plaintiff produced a statute that entitled the winning party to attorneys' fees, along with proof that the plaintiff's legal bill exceeded $30,000. The defendant was understandably upset with counsel having not been advised of the potential attorneys' fee award. However, the defendant was also sufficiently motivated to settle for the reasonable amount offered.

How to Determine Whether a Statutory Attorney Fee Provision Exists

There aren't any shortcuts that will help you determine whether a particular statute exists. Consider searching for the case type, your state name or "federal" (depending on if it's a state or federal case), and "statutory attorneys' fees." If you don't have any luck, consult a lawyer.

Filing for Bankruptcy When You Can't Afford to Pay Attorneys' Fees

Sometimes the worst happens. You get involved in a lawsuit, lose, and are responsible for the other side's attorney's fees. Considering that the attorneys' fees for a litigated case that has made its way through a trial can run $100,000 to $500,000, finding out you've lost and have to pay your opponent's costs can add more than a little insult to injury.

If you don't have the funds to pay, your attorney will likely recommend bankruptcy. Attorneys' fees are generally dischargeable, meaning you can wipe them out.

If your income is low, you will probably qualify for a quick Chapter 7 bankruptcy. Otherwise, you'll likely pay the fees off over five years in a Chapter 13 case. The amount you'll pay in Chapter 13 could be very little or the entire amount. It will all depend on your income, debt, and property value.

Find out how much you'll be responsible for paying in a Chapter 13 plan.

Where to Find More Information

If you'd like to try your hand at researching attorneys' fees statutes, you'll find tips in Laws and Legal Research. For information on attorney fees in general, see Attorneys' Fees: The Basics.

You can learn more about working with a lawyer, see The Lawsuit Survival Guide: A Client's Companion to Litigation, by Joseph Matthews. If you're a litigant in a small claims action, consider purchasing Everybody's Guide to Small Claims by attorney Cara O'Neill.