As an experienced Georgia Injury lawyer, clients frequently ask me whether they are entitled to recover attorneys’ fees as part of their damages when they are forced to file a lawsuit in Georgia. In this context, “attorneys fees” are those fees awarded by the court (either by the judge or the jury) to be paid by the opposing party as part of the damages awarded. The short answer is: yes, attorneys’ fees are available as an element of damages, but recovering them is never guaranteed. In business disputes and breach of contract litigation, there is usually a contractual right to recover attorneys’ fees for the prevailing party in the contract. Or, at times, there will be statutory authority to recover attorneys’ fees and interest. However, in personal injury litigation, the principle statute relied upon to recover attorneys’ fees and expenses of litigation is O.C.G.A. § 13-6-11.
Under § O.C.G.A. Section 13-6-11, a plaintiff is entitled to attorneys’ fees when: (1) the plaintiff has specially pleaded and has made a prayer to the court therefore; and the defendant has either (2) acted in bad faith; (3) has been stubbornly litigious; or (3) has caused the plaintiff unnecessary trouble or expense.
If the plaintiff in a legal action in Georgia can prove one of these elements, the plaintiff would be entitled to attorneys’ fees and expenses of litigation, in addition to all of the damages he or she is entitled to under the law. Under Georgia law, whether a litigant has been stubbornly litigious is a question of fact for the jury to decide, rather than a question of law that would be decided by the judge during trial.
“Where no bona fide controversy exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ “ Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 524, 191 S.E.2d 317 (1972). Such a “so sue me” attitude authorizes the imposition of attorneys’ fees and the expenses incurred in litigation:
A defendant without a defense may still gamble on a person’s unwillingness to go to the trouble and expense of a lawsuit; but there will be, as in any true gamble, a price to pay for losing.
Id. at 525, 191 S.E.2d 317. And the question of whether there was a bona fide controversy is for the jury “unless the facts preclude such a finding as a matter of law.” Webster v. Brown, 213 Ga.App. 845, 846(2), 446 S.E.2d 522 (1994).
Robert J. Fleming is an experienced Georgia trial lawyer. In addition to a law degree, Mr. Fleming has earned an MBA in finance and he has successfully litigated many important cases. This unique skill set has enabled Mr. Fleming to achieve record successes in this area.
If you would like to discuss your case with us, please call Robert J. Fleming, directly at (404) 525-5150 or contact us online. We are here to help.