by Darren M. Baldo, Esq., CPA, LLM

You cannot recover your own attorney fees even if you’re successful in your case, unless the law provides for it or unless your contract provides for it. There are many areas where attorney fees are recoverable if you are successful in your case. For example, if you prove that your employer violated the Conscientious Employee Protection Act (CEPA) or the Law Against Discrimination (LAD), then you are likely able to recover your attorney fees. Also, recovery of attorney fees is a statutory remedy expressly permitted under the Consumer Fraud Act (CFA), so long as you prove an actual violation of the CFA, notwithstanding lack of proof of actual damages caused by any such violation.

In your contracts, you should carefully negotiate the provisions involving attorney fees. In some contracts, the parties negotiate whether the winner should automatically have their attorney fees paid. But, what if the case is settled? Most contracts do not cover settlements but, in my experience, the parties usually address that issue during the settlement negotiations. Sometimes, a party might negotiate that the remedy for paying the non-breaching parties’ attorney fees is not triggered unless and until the non-breaching party is successful in litigation in actually proving the breach occurred.

Providing for recovery of expert fees is a frequently overlooked item in contracts. In fact, under the CFA, expert fees are not explicitly covered in the statute. Oddly, expert fees are not given the same degree of certainty as attorney fees under the CFA. One would think that if one needed an expert to prove causation and damages that the remedy to recover expert fees should be automatic under the CFA, but it’s not. Under the CFA, it just states that "reasonable costs of suit" are covered. Therefore, recovery of expert fees is subject to the court’s discretion, consequently making it more difficult to recover than attorney fees unless you successfully argue that your expert fees are a "reasonable cost of suit."

Accordingly, your contracts should provide explicitly and clearly for recovery of your attorney fees and expert fees in the event that the other party breaches the contract.

Darren M. Baldo, Esq., CPA, LLM is an attorney who focuses on litigation, contracts, collections, bankruptcy, wills, trusts, estates, employment law and tax law. Visit www.dbaldolaw.com

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