Bad news first. In Illinois, attorneys' fees are not always recoverable, even if you "win" your lawsuit. Illinois is an "American Rule" jurisdiction which means that each party to litigation pays for her or her own attorneys' fees. As with everything in the law, there are two exceptions:
- If a statute provides for recovery of attorneys' fees (think the Chicago Residential Landlord Tenant Act or the Magnuson-Moss Warranty Act); and
- If the litigants are parties to a contract that contains a provision known as the "prevailing party provision" and provides that if successful in enforcing the terms of the contract, that party will recover its reasonable attorneys' fees.
Statutory Recovery of Attorneys' Fees
In Illinois, there are over 80 statutes that have a provision for the prevailing party to recover its attorneys' fees. The legislature, in drafting the statute, intended that the attorney fee provision be included for violations of these specific statutes are often considered remedial in nature. If you are considering filing a lawsuit against someone and it is not based on a written contract with the prevailing party provision, it is important to consult with an attorney to determine if there are any local, state or federal statutes that are applicable to your case and that could provide for recovery of your attorneys' fees. If not, as the American Rule states, each party is responsible for its own attorneys' fees and costs, despite the outcome of the litigation.
Contractual Recovery of Attorneys' Fees
If the lawsuit at issue is based upon a written contract between the parties and that contract contains a prevailing party clause, the prevailing party will be entitled to its attorneys' fees. That being said, when entering into a contract with someone, it is important that you consult with an attorney to discuss any fee shifting provisions that may be included and considerations as to whether the prevailing provisions could actually hold that you are responsible for the other party to the contracts legal fees.
If you are entitled to your attorneys' fees, whether by statute or contract, the fees must be reasonable, and it is within the discretion of the trial court to determine the reasonableness of the fees sought. The considerations employed by the court are the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community in which the lawsuit is brought, and lastly, whether there is a reasonable connection between the fees charged and the litigation at issue.
If you have a cause of action and want to know if you can recover your attorney fees, or if you are entering into a contract with someone, make sure to consult an attorney to assist you in navigating these considerations.