SATELLITE OFFICES:
New York City Law Office
1040 Avenue of the Americas - 24th Flr.
New York, NY 10018
(212) 847-9560

Morristown, New Jersey Law Office
55 Madison Avenue, Suite 400
Morristown, NJ 07960
(973) 285-3360

Lyndhurst, New Jersey Law Office
10 Stuyvesant Ave
Lyndhurst, New Jersey 07071
(201) 531-8989

Tuckerton, New Jersey Law Office
149 E. Main Street,
Tuckerton, New Jersey 08087
(609) 296-6666

Bristol, Vermont Law Office
25 D Main Street
Bristol, VT 05443
Phone: (802)453-5765
Fax: (802) 329-2100

Click here for Directions

One of the most frequently asked questions of us in the litigation department, is “if I sue, can I get the other side to pay my attorneys fees?” The possibility of fee shifting is always on everyone's mind when involved in a litigation matter. Most people know that attorneys, especially litigators, do not like to offer any guarantees, so predictably, our answer is you might be able to get your fees paid or you might not. In practice, Courts generally seek to avoid an award of fees, even if they are truly warranted, as our system is designed for litigant's to pay their own way.

The “American Rule,” as opposed to the “English Rule,” is that parties bear their own counsel fees except in the few situations specifically permitted by Statute or by our Supreme Court. This makes the United States different from most other democracies in that, for the most part, litigants pay their own legal fees, win or lose. However, there are many scenarios in which attorneys fees may be awarded. Some specific actions permit some of the prevailing parties' fees to be paid. These include a family action, where a fee is allowed in both Pendente Lite or on final determinations; out of a fund in court the Court may make an allowance for fees; a probate action; a mortgage foreclosure action; the foreclosure of a tax certificate; and in an action upon a liability or indemnity policy of insurance. Also, fees could be appropriate if the parties have agreed, in a contract, that if a dispute arises and is litigated, the prevailing party is awarded fees.

Frivolous Litigation

The area where fees are most often discussed is when dealing with frivolous litigation. The Rules of Court and specifically, R. 1:4-8 provide, in part, that by signing and filing a pleading or motion an attorney certifies to the best of his or her knowledge that there is some basis for the matter being presented. The “Frivolous Lawsuit Statute” (N.J.S.A. 2A:15-59.1) permits an award of attorneys fees and costs if it is determined that a complaint, counterclaim, cross-claim or defense of a non-prevailing party was frivolous. However, the term frivolous needs to be defined. The Statute does provide some guidance. In order to find a case frivolous, the case, pleading or defense must have been commenced or continued in bad faith, solely for the purpose of harassment, delay or malicious injury or the losing party should have known that their claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. The determination on what constitutes bad faith in this context is an issue that can, in and of itself, be litigated for a long time. We have successfully litigated matters seeking the assessment of fees but often a party will expend considerable additional sums seeking to obtain attorneys fees. Ultimately, you should enter the litigation assuming that you will have to pay your own fees as the matter progresses through the system.

Darrell M. Felsenstein is a Partner at
WJ&L and serves as the Chairman of our Litigation Department.