Who Pays The Expenses Of Business Litigation Cases?
You start off a case with the premise that each party will be responsible for his or her or its own attorney’s fees. Then, you look to see if there are ways that you could obtain attorney’s fees from the other side. One of the places to look is the statute. You may be under the particular statutory provision that says the prevailing party is entitled to attorney’s fees. If so, you don’t need any other type of contract or any other type of document. You also have terms in contracts that will grant attorney’s fees to the prevailing party. Often, one party will draft a contract stating that if that particular party has to enforce the terms of the agreement, the particular party that the attorney who drafted the contract represents is entitled to attorney’s fees, but it doesn’t mention what happens if the other side wins.
In Florida, there is a theory that if there is a provision that entitles parties to attorney’s fees from the other side, if there is a prevailing party that is silent, the judge will grant attorney’s fees to the party in which the attorney fee provision for prevailing parties are silent. You can’t just have it one way. If it’s in there for one party, then it’s good for both parties. There is also kind of a catchall in Florida statutes which state that if the complaint that was filed or the defense that was filed is completely meritless, the judge should grant those fees, even though there is no contractual right and no statutory right.
Those fees are very difficult to get because it sets a bad precedent. If you allow that, then you dilute any kind of terms where you absolutely have to put in attorney’s fees and both sides are on notice that if they lose, they have to pay attorney’s fees. Most judges are very hesitant to grant that, but that is another way to collect fees in Florida.
Another Company Has Harmed Us. How Do We Know If We Should Sue?
Whether or not to sue depends on the nature of the harm and whether or not it’s to the extent that it’s necessary to recover the damages caused by that harm. If, for example, a former employee has violated a non-compete agreement but there hasn’t been any type of monetary harm, you may be able to just solve the problem by issuing a cease and desist. Typically, those are drafted by attorneys and we point out the provisions in the non-compete that was signed that are being violated, and then we state that if they continue in this course of action, we will avail ourselves of all remedies, including but not limited to filing suit. A lot of times, you can rectify it by pointing out to the other side that you know what they are doing and you know that what they are doing is illegal. You can point out the reasons why they are illegal and tell them to cease and desist with that activity. If that doesn’t stop them, you can go ahead and go through the pre-litigation issues that have been discussed or file suit to ask for injunctive relief.
Before any of that takes place, a business either has to have their own lawyer or have outside counsel determine whether there actually is some type of legitimate count that could be filed and what to do about it, if there is.
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