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Can a Defendant Recover Attorneys’ Fees?

by | Dec 21, 2022 | Firm News

When Can Defendant’s Get Attorneys’ Fees in Contractual Disputes?

Litigation (and legal disputes in general) can be costly, which only adds insult to injury when you are a defendant. One way to help protect yourself from increased expenses is to request attorneys’ fees early and in all ways available. There are three main ways for a defendant to recover attorneys’ fees in a contract lawsuit.

  1. The first statute provided for Defendants to recover attorneys’ fees is O.C.G.A. § 9-15-14. Here, a defendant may recover attorneys’ fees if a plaintiff has filed a frivolous lawsuit. The purpose of this statute is to deter abuses of the legal system and to make defendants whole, who were required to pay unfounded and unfair litigation fees.
  2. 13-6-11 – Recently, in SRM Grp. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404 (Ga. 2020) the Georgia Supreme Court has held that defendants may recover attorney’s fees under O.C.G.A. § 13-6-11 in a breach of contract counterclaim. For years, this statute was only available to plaintiffs. However, the Supreme Court stated that either plaintiffs or defendants could seek attorneys’ fees when the other party has acted in bad faith, has been stubbornly litigious, or inflicted unnecessary trouble and expense.
  3. The final, and arguably most important way to protect yourself from paying attorneys fees is contractually providing an attorneys’ fees provision. It is one of the most straight forward ways to recover attorneys’ fees as a defendant. If a contract provides that the prevailing party of a dispute gets attorneys’ fees, then any statutes will provide additional support for a strong claim for attorneys’ fees claim.

It is important to understand and know when attorneys’ fees may be available to you as a defendant. The best protection is to provide for attorneys’ fees within the contract. Having multiple theories to recover on helps to provide a cushion and ensure that attorneys’ fees may be recovered at the end of an unnecessary or expensive litigation.

If you would like to speak with one of our attorneys concerning your contract dispute and potential attorney fee claim click “contact us,” above.