Few things rattle the client's cage more than having to pay attorney's fees while still winning. It's a common cry: They'll pay my attorney's fees!!!!
The English litigation system awards to the prevailing party it's attorney fees simply as a matter of course. The USA is different. “The general rule in Minnesota is that attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.” Dunn v. Nat’l Beverage Corp., 745 N.W.2d 549, 554 (Minn. 2008) (quotation omitted). For example, “[L]eases are contracts” and can identify whether attorney's fees are paid to the prevailing party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 14 (Minn. 2012). Other actions, such as private attorney general claims, grant attorney's fees to the plaintiff pursuant to statute; no contract clause is needed.
But, be careful to take away the court's discretion. The court determines what amount should be awarded to the prevailing party. It must always be "reasonable". However, if you state the court "may" award attorney's fees versus "shall" award attorney's fees, you leave the door open to not getting any of your fees paid. A judge may honor a jury's decision, but not like your client or your case and invoke its discretion to not award attorney's fees.
Take note of this and keep it in mind. Attorney's fees are always important to incorporate into a litigation adventure. This may help you assess whether to proceed and is something I always incorporate into my counseling.
