An article, “Making the Most of Defense Attorneys’ Fee Award,” in DRI’s For the Defense, by Adam M. Koss and Heather A. Barnes reports on attorney fee awards for prevailing defense counsel.  This article was posted with permission.  The introduction reads:

As defense lawyers, we often think of attorneys’ fee clauses and statutes as a hindrance to settlement and a liability for our clients after judgment.  This is because, more times than not, plaintiffs retain their attorneys on a contingency fee basis, and thus pay nothing out of pocket to their attorneys, yet assume they will recover damages and attorneys’ fees.  Meanwhile, our clients are paying hourly and incurring substantial fees, increasing their expectations as to the savings they should achieve through settlement.  This type of thinking can and should be turned on its head. 

If a case proceeds to judgment and the defense wins, defendants are generally entitled to fees under the same standard as plaintiffs, regardless of whether they originally paid hourly, on a flat fee, below-market rate, or not at all.  Understanding the situations in which fee awards are recoverable and how such awards are calculated can also greatly assist in encouraging settlement.  In that regard, this article will look at the two main issues which often come up in fee awards sought by the defense: (1) who is entitled to seek an award; and (2) how is the award calculated.

Adam M. Koss is the principal at Koss Law APC in Walnut Creek, CA and Heather A. Barnes is a shareholder at Murphy Pearson Bradley & Feeney PC in Sacramento, CA.