Under the standard “American Rule,” each party in litigation is responsible for its own attorneys’ fees unless provided by statute (or by contractual agreement of the parties).

As opposed to decisions by judges that become legal precedent, statutory laws are passed by a legislative body such as Congress or state legislators. 

In the context of federal and state employment law, the statutory schemes allow for employees to recover attorney fees who prevail against their employers.  Discrimination and retaliation cases concerning the Americans with Disability Act or Civil Rights Title VII are such examples.  In these situations, employees are entitled to reimbursement of their attorneys’ fees incurred in obtaining that recovery.

In the context of non-compete agreements for “restraints on trade”, Florida statutes allow the prevailing party to recover legal expenses from the losing party in the absence of a contract stating otherwise.


Fee shifting of attorney fees

Each side in a case is responsible to pay its own costs until that responsibility is shifted to the other party.  Fee-shifting statutes vary depending on the type of lawsuit and statutory claim.

First of all, for some claims the plaintiff is entitled to statutory fees. If the plaintiff loses the case, the defendant is not entitled to fees as the prevailing party – and there is no fee-shifting.  However, there are some claims that have fee-shifting rules that ward statutory attorney fees to the prevailing party, where the entitlement can shift from plaintiff to defendant if they win.

The Florida statutory scheme of FDUTPA, Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) allows for fee shifting.  Nevertheless, the fee-shifting is often at the discretion of the judge.  In practice, judges are often reluctant to shift the fees to the defendant as to not discourage plaintiffs to pursue their righteous claims and will also only shift the fees when a frivolous case has been filed.

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