Will I get all my attorney fees awarded to me if I win?  This question often arises in a business law setting where clients are making a business decision about whether or not a business lawsuit is worth the cost.  Often this is controlled by the contract, if one is at stake, that the parties have agreed to in advance and specifying that the winner gets their reasonable attorney fees.  But certain statutes may also authorize the award of attorney fees in the absence of such a contract clause in the discretion of the court.  Current Oregon law requires that in cases where an attorney fee award is authorized by statute and the court has discretion to decide to award attorney fees or not, the court must consider certain factors.  The applicable statute is ORS 20.075.  Under that statute the court, when making the decision to award attorney fees or not, must consider: 

   (a)    The conduct of the parties in the transactions or occurrences that rise to the case or the litigation, including any conduct that was reckless, willful, malicious, in bad faith or illegal; (b)  The objective reasonableness of the claims and defenses; (c)  The extend to which an award of attorney fees would deter other from asserting bad faith claims or defenses; (d)  The extent to which an award of attorney fees would deter meritless claims and defenses; (e)  The objective reasonableness of the parties and the diligence of the parties and their attorneys during the case proceedings; (f) The objective reasonableness of the parties and the their diligence in pursuing settlement of the dispute; (g)    The amount already awarded as a prevailing party fee; and (h) Any other factors the court considers appropriate.

Then, if the court decides to award attorney fees, in determining the amount the court must consider:    (a) The time and labor required, the novelty and difficulty of the issues, and the skill needed to properly perform the legal services; (b)  The likelihood, if apparent to the client, that the acceptance of the case by the attorney would preclude him or her from taking other cases; (c)  The fee customarily charged in the location for similar legal services; (d)  The amount involved in the controversy and the results obtained; (e)  The time limits imposed by the client or the case circumstances; (f)  The nature and length of the attorney-client relationship; (g)  The experience, reputation and ability of the attorney performing the services; and (h) Whether the fee is fixed or contingent. 

Finally, the overriding principal is that an attorney fee award must never be in excess of a reasonable amount.  To find out if fees are recoverable in your case, please call attorney Tim Elliott for a consultation.