Page 27

In May 2013, I spoke at the National Conference on Equine Law in Lexington, Kentucky, on the topic of recoverability of attorney fees in equine litigation. Here are some of my remarks.

can punish the wrongdoer by ordering that it pay the other party’s legal fees and court costs. However, courts are highly reluctant to do this, as this author — despite 27 years of law practice — has found.

The losing party in a legal dispute is not always required to pay the winning party’s legal fees. Only under limited circumstances can a party in a lawsuit win back his or her legal fees. In the United States (as compared to England with its “loser pays” rule), each party must bear the cost of his or her own legal fees. Four settings exist, however, in which a court could order one party to pay the other’s legal fees and costs.


One: The Parties Had an Enforceable, Written Contract That Specifically Addresses Payment

2. In some cases, it might make good economic sense to bypass the legal system altogether, especially where the amount at stake is small. Consider alternatives such as arbitration, mediation, or community-based dispute resolution centers.

To increase your chances of winning back your legal fees, use a carefully written contract from the start. A contract can specify the settings in which one party is obligated to pay the other’s fees and costs if the contract is breached (violated). An example of this language is: “Should either party breach this Agreement, the breaching party shall pay the other’s court or arbitration costs and reasonable attorney’s fees related to such breach.” Two: An Applicable Statute Provides for Attorney Fees Some State and Federal statutes award a winning party his or her legal fees. These laws can include: • Deceptive trade practice laws or consumer protection laws • Civil rights and anti-discrimination laws • Fair debt collection practices laws

In conclusion, please keep these ideas in mind: 1. When a legal dispute involves small amounts of money, legal fees could exceed the amount at stake. In these settings, consider proceeding in small claims court without a lawyer.

3. Make sure that your contracts include, in an appropriate way, a clause that addresses the payment of legal fees. 4. Even if a court commands the other party to pay your legal fees, this is no assurance that you will actually recover them. The other party might lack sufficient funds. Or, the court might scrutinize the cost of the services or volume of work performed and only award you some, not all, of your legal fees. This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney. About the Author

Depending on the law’s language, your entitlement to recover legal fees can be automatic — all it takes is winning the case and proving that the losing party broke the law. Some laws add difficulty by requiring that you prove the losing party “willfully” or intentionally broke the law before recovering fees. Three: An Applicable Court Rule Provides for Payment of Legal Fees Court systems have rules that govern how lawsuits proceed. In some instances, these rules give judges the discretion to order one party to pay some or all of the other’s legal fees and costs when certain situations occur, such as:

Julie Fershtman is one of the nation’s most experienced Equine Law practitioners. A lawyer for nearly 26 years, she is a shareholder with the firm Foster Swift Collins & Smith, PC ( and has successfully tried equine cases before juries in 4 states. She has drafted hundreds of equine industry contracts and is a Fellow of the American College of Equine Attorneys. She has spoken on Equine Law in 28 states, and is listed in The Best Lawyers in America, 2013. For more information, visit, or

• The losing party failed to appear and defend a lawsuit. (Lawyers call this non-appearance a “default.”) In this setting, the winning party might be entitled to win back his or her legal fees, especially if the court finds sufficient proof that the nonappearing party had proper notice of the proceedings.

Please visit and “LIKE” our Facebook Page: “Foster Swift: Equine Law”!

• The court believes that the other party disobeyed a valid order of the court. Four: The Court Specifically Found that the Other Party Asserted a “Frivolous” Claim or Defense If a party has advanced a frivolous case or defense or has somehow acted in “bad faith” throughout the lawsuit, judges Page 27

Desert Mirage - June 2013


Global Arabian horse lifestyle magazine.