Congratulations. You've just won your civil case. After two years of waiting for litigation or settlement negotiations and paying your lawyer thousands of dollars to advocate on your behalf, you can't wait to get the money from your judgment—including the costs and attorney's fees. 

You won, right? Doesn't that mean the loser has to pay you back costs and attorney's fees?  Nope! In the State of Tennessee, unless there is a rule, contract, or law that says otherwise, the loser does not pay the winner’s attorney fees.

Fees That Could Be Awarded to the Winner in Tennessee

There are three types of fees you could be awarded upon winning your case:

  1. Court Costs. These are costs paid or owed to the court clerk to litigate your case. You determine the court costs by asking the clerk to prepare a bill of costs.
  2. Discretionary Costs. These are costs you are required to incur to efficiently litigate your case. They include, but are not limited to, court reporter fees, expert witness fees, investigator fees, mediation costs, and other reasonable and necessary fees.
  3. Attorney Fees. This includes the costs and fees you paid your lawyer to handle your case. A lot of folks think that if they win their case, then they will get attorney's fees. It makes sense. The loser SHOULD have to pay for the winner to expend all of that time and money to go to court; however, that is NOT the law.

The rules of civil procedure allow the prevailing party to get court costs upon winning their case. The rules of civil procedure only allow discretionary costs upon filing a motion and getting approval from a judge. The judge has the discretion on whether or not to award you those fees. 

As far as attorney fees, the loser doesn’t pay unless there is a law or contract that requires the loser to pay attorney fees. For example, the reason you see a lot of "attorney fees" clauses in contracts is because the loser does not pay the winner in a breach of contract claim unless the parties to the contract agreed to do so.

Tennessee Laws That Require the Loser to Pay

There are very few laws that require the loser to pay. These include but are not limited to:

  • The Tennessee Consumer Protection Act
  • Petitions or Motions for Civil Contempt
  • Motions to Compel Discovery
  • Motions for Failure to State a Claim
  • A form of lump sum alimony in divorce cases

The most common case where the loser pays is in post-divorce cases related to civil contempt. If the former spouse did not follow the marital dissolution agreement, then you should be able to get an award of attorney fees upon winning your case. If the other parent is not following the parenting plan, then you should be able to get an award of attorney fees upon winning your case. If the other party has violated any court order, then you should be able to get attorney fees for that person's violation of the order.

Contact Us for a Straight Answer

Unfortunately, there are many attorneys who get their retainers by telling the client that the loser pays attorney fees. Clients find it easier to justify paying a lawyer thousands of dollars when they are advised that they will be able to get it all back when they win their case—however, it isn’t always true.

If you're thinking about suing someone, make sure you seek counsel that will properly advise you on the law as it relates to the award of attorney fees. If you are unsure about whether you are entitled to an award of attorney fees, contact us today and someone from our office will be glad to point you in the right direction.

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