Litigation Fees & Expenses

Contract Type:

In the event of any legal action arising from this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs from the other party.


This clause specifies that:

1) If any lawsuit or other legal proceedings result from a dispute or claim under the agreement between the parties, the party that prevails or is successful in the litigation will be entitled to recover their reasonable attorneys' fees and associated legal costs.

2) The fees and costs that can be recovered refer to those actually incurred by the prevailing party to prosecute or defend the legal action. They must be reasonable rather than excessive.

3) The prevailing party is the one who succeeds in the litigation overall based on final judgments or rulings, whether through settlement, dismissal, withdrawal or conclusion of the case. They need not prevail on every claim to recover.

Key purposes and rationale for including a litigation fees and expenses clause like this are:  

1) Compensation: The clause compensates the prevailing party for the legal fees and costs they incurred to pursue or defend the litigation by shifting responsibility for payment onto the other unsuccessful party. They do not end up out of pocket.

2) Indemnity: By allowing the prevailing party to recover fees and costs from the other side, the clause effectively indemnifies them against liability for legal expenses arising from any dispute or claim, unless and until finally deemed unsuccessful. The risk of loss is removed.

3) Fairness: The clause introduces a degree of fairness by requiring the party responsible for instigating unsuccessful legal action, or whose claims/defenses were deemed weaker, to bear the legal costs rather than leaving each party to cover their own expenses regardless of the merit or outcome of proceedings. Accountability is imposed.

4) Consequence: Facing potential liability for the other side's legal fees and costs if unsuccessful creates consequence and deters frivolous or unmeritorious claims, defenses or unreasonable conduct during proceedings. Parties will litigate and behave responsibly if aware fees may be awarded against them.

5) Predictability: By stipulating clearly that one or both parties may recover fees and costs if successful, the clause allows them to predict and consider this potential consequence when evaluating whether to pursue or defend any claims arising under the agreement. No surprises result regarding liability for fees.

In summary, a litigation fees and expenses clause introduces accountability into the legal process by requiring an unsuccessful party to shoulder the reasonable costs of the successful opposing party's legal representation and participation. At their fairest and most prudent, these clauses aim for justice and reasonable conduct rather than penalization alone. However, they also frequently reflect power and strategy in play.

Overall effectiveness ultimately relies on good faith - they serve shared benefits where balanced through understanding but also risk perceptions of injustice if used without restraint or broader consideration of proportionality in response. Purpose is found where unity aligns interests through shared responsibility, not supremacy alone.

History of the clause (for the geeks)

Early common law prohibitions on recovering attorneys' fees from opposing parties aimed to ensure open access to justice regardless of one's capacity to pay. However, as claims escalated, this approach risked abuse and irresponsibility. The innocent faced legal harassment, and merits mattered less than means. Equity suffered when only the well-resourced could risk pursuing rights or hope to defend against the litigious without consequence.

By the 19th century, exceptions for contractual fee clauses and statutory fee-shifting provisions emerged. Private deals could reasonably require accountability to contract terms by authorizing recovery of legal costs from those instigating unmeritorious breach. Legislatures enabled recovery to curb specific types of suits deemed abusive or promote certain socially valuable claims. But oversight applied - private terms could not override public policy, and propriety was key. Awards required fairness and restraint.  

Early 20th century, contractual litigation clauses spread as business sought both access and responsibility in process. Preventing frivolous grievances or irresponsible conduct benefitted partnerships - substance over technicality or wealth became possible. However, restrictions continued against that seeming to deter rightful claims or unfairly penalize through imposing disproportionate cost and consequence. Access and equity remained relevant - restraint was also remedy. Awards implied balance of interests, not supremacy.  

Mid-century, private ordering gained credence as enabling the efficient and just allocation of resources and risk if used judiciously - freedom to contract provisionally legitimated diverse and innovative fee terms. But scrutiny for overreach and abuse accompanied any deference here - "fairness empirics" weighed actual effects against intent and propriety within relationships and communities relying on open process. Purpose looked to fruits and implications in context, not strict construction alone.

Today, litigation fee clauses remain subject to demands for access, responsibility and restraint in application. While enabling private choice and accountability, legitimacy depends on stewarding process with due consideration for "justice in practice" - not theory or formulaic entitlements alone. At their most prudent and fair, these clauses represent covenants to achieve reasonable and mutually bearable dispute resolution through understanding and restraint between parties as much as rights assertion. They aim for preservation of relationships where possible instead of escalation through penalization without cause or balance. But distinction relies on wisdom and oversight - private interest requires civic duty to avoid overreach and corrupting shared gain when remedy turns unjustly punitive. Equity serves advantage here by restraint that relinquishes rule when required. Purpose finds cure in restoring capacity for self-governance and partnership over conflict resolution by imposed control and division as ends in themselves.

In summary, litigation fee clauses reflect a quest to craft workably fair and responsible dispute process through private choice, but legitimate effect has always relied on wielding authority provisioned through public trust judiciously - as means for shared gain, not concentrating benefits or power alone. At their most judicious and prudent, these clauses signify shared commitment to steward resources and risks in a manner that contains conflicts cooperatively instead of escalating them divisively. But wisdom to situation is key.

While protecting rights and deterring abuse, disproportionate cost threatens access and escalates grievance rather than restoring remedy. True equity unites interests in our duty to forbear and be forborne in equal part. Justice weighs capacity in context to align purpose here beyond asserting claims of entitlement or control without restraint. In the end, shared gain alone sustains through mutual effort towards partnership in the place of conflict beyond resolution by supremacy of will.