Attorney’s Fees 101

by Chris Markham. 0 Comments

Have you ever watched Wheel of Fortune? When the lucky contestant gets to the final round, the show generously provides them a number of letters and a vowel “RSTLNE”. I use this example in many different ways. Usually, it’s before clients when they have a few questions
I used to always give a similar spiel when I got with clients at the beginning of our relationship. My standard, “anything can happen at any time,” “litigation is not guaranteed” and “anyone can sue someone at any time for any reason” are the standards in my canon. But these days, I think I have to add a few more.
First, unless you go to a hospital for something along the lines of a heart attack or another serious condition that is both stress-related and almost fanatically a result of the lawsuit (or conditions arising from the lawsuit), you aren’t going to get pain and suffering. Most of us experience a great deal of stress in our lives – we have jobs, interpersonal relationships, kids a gambling habit, etc. All of these individually or in concert can lead to a physical malady. Sleepless nights, worrying, boring your loved ones and friends about the terrible injustice committed against you – those are not conditions that give rise to a claim of pain and suffering. Coming home to see someone has burnt down your house and you have a heart attack in the driveway – that might give rise to a claim of pain and suffering as long as you have no underlying cardiac disease and you were a picture of perfect health and low stress until you saw the charred remains of your life before you.
Additionally, pain and suffering is most commonly used in personal injury cases where one, does in fact, get hurt. And even then there is a pretty good rule of thumb that the award for the aforementioned pain and suffering is three times your medical bills. If you rack up $5,000.00 in medical bills (including hospital/doctor’s visits, physical therapy, prescriptions) then your pain and suffering tally equals $15,000.00. If you don’t go to the doctor or the hospital, skip physical therapy and buy some Tylenol off of the shelf, then you’ll receive approximately $15.00.
Again, in a civil case that isn’t personal injury, pain and suffering is very difficult to prove, and it and of itself, is not a sustainable action (or at least one that a judge will likely listen to).
Second is that old chestnut that most of us attorneys hear on a day-to-day basis. That being “I want to sue them for my attorney’s fees.” There are a few issues with that statement. As I’ve said in previous columns, no one feels as though they should pay an attorney. If they’re a plaintiff, they think its horrible they have to pay someone to obtain what should have been theirs in the first place. If they’re a defendant, they feel it’s unfair that someone should sue THEM of all people – it’s a ploy to harass, abuse and cheapen, and it’s yet another indignity the defendant must endure to set things right and get justice.
In summary, no one feels as though they have to pay an attorney anything.
The world would be a much better place if we didn’t have to pay anyone for anything, but I digress. In Maryland, as a general rule, attorney’s fees are not recoverable. Thus, each side must pay their own freight. Even when a lease or a contract dictates that the losing party will pay the prevailing party’s attorney’s fees, the court may not allow that clause to stand. Only when a statute (such as the Maryland Consumer Protection Act) allows a judgment of attorney’s fees to the prevailing party does the award of attorney’s fees occur, and even then, a judge may request additional motions to allow it.
Another instance is when the case that’s been filed is so frivolous that said case shouldn’t be allowed to even enter the clerk’s office. Examples of this could be a complaint alleging only pain and suffering as a result of loud noise from a neighbor’s home or a complaint filed simply to harass the opposing party where no relief is sought and where none can be granted. However, these days, a frivolous suit is a pretty high bar to get over. Most suits that are filed by attorneys have at least some grain of truth (and damages that flowed therefrom) in them.
And some days, in our legal system, a grain of truth is hard to find.


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