When a person comes to a lawyer, he or she usually has a story and two questions. The story is the set of facts that makes them believe they need legal help. The two questions are: 1) Do I have a case? and 2) Can I collect attorney fees?

Any client knows that attorney fees can be substantial. Sadly, the cost of bringing a lawsuit can prohibit people and companies from bringing legitimate cases. Conversely, many people and companies settle frivolous cases simply to avoid legal fees. Many people are frustrated with this situation and feel something should be done. These people believe it is unfair to have to pay legal fees to get something you are legally entitled to have or to defend something that has no merit. These people suggest a “loser pays” system where the legal fees of both sides are paid by the loser. While this idea may have merit, it is not the law in North Carolina.

In this State, each party pays for its own legal fees. The exception to this rule is where a statute specifically allows a party to collect attorney fees. Even in those cases the decision to award fees is in the discretion of the judge. In North Carolina there are a number of statutes which allow people to recover attorney fees. Some of the most common are listed below:

N.C.G.S. § 6-21.2 Attorney fees in amount of up to 15% of principal are collectible on “evidence of indebtedness.” Note limited amount. Even though your contract may include attorney fee provision, that provision may not be enforceable unless your contract is considered an evidence of indebtedness. To enforce this, a notice must be sent.

N.C.G.S. § 44A-35 Prevailing party in lien or bond claim can collect attorney fees if other side unreasonably refused to settle matter.

N.C.G.S. § 75-16.1 Prevailing party can collect attorney fees in claim for unfair or deceptive trade practices.

N.C.G.S. § 6-21.1 Attorney fees can be awarded in claim for personal injury or property damage less than $10,000.

In addition to these state claims, many federal statutes provide for attorney fees.

The stark reality is that when you choose to proceed with litigation you should not anticipate recovering your attorney fees.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.