You Can Have Your Cake and Eat It Too: Attorneys’ Fees in Illinois

It is no secret that litigation can be expensive. While filing a lawsuit can be an effective tool for enforcing and defending your rights, the costs of doing so can sometimes outweigh the benefits. No one wants to file a lawsuit only to spend more money on fees than are awarded in a judgment. In the United States of America, the parties in a lawsuit are typically responsible for paying their own attorneys’ fees. However, there are a couple of exceptions in Illinois that can make it possible for you to recover your attorneys’ fees in the event that you have to file a lawsuit. In some instances, you can even be awarded your attorneys’ fees if you have to defend yourself against an unsuccessful lawsuit.

In Illinois, the parties to a lawsuit can recover attorneys’ fees if a statute or an agreement between the parties provides for such relief. Ardt v. State, 292 Ill. App. 3d 1059, 1063 (1st Dist. 1997). For example, the Magnuson-Moss Warranty Act, the federal statute that addresses warranties on consumer products, provides that a plaintiff who wins their case may be awarded reasonable attorneys’ fees. See 15 U.S.C. § 2310(d)(2). Similar provisions can be included in contracts so that you can recover your attorneys’ fees if you have to file suit against another party to the contract. In either of these instances, you can be awarded your attorneys’ fees if you win your case. If you lose your case, then it is up to you to pay your attorneys.

However, there are other types of fee shifting provisions that, while potentially useful, can be very damaging if you do not win your case. Commonly referred to as “prevailing party” provisions, these types of fee shifting provisions state that the party who wins the case can be awarded attorneys’ fees. This means that if you file suit against a defendant and you lose, you can potentially be responsible for paying the defendant’s attorneys’ fees. One such example is Section 10a of the Illinois Consumer Fraud and Deceptive Business Practices Act, which provides that, in some instances, the party who wins the case can be awarded attorneys’ fees. See 815 ILCS 505/10a(c). If you enter into a contract that contains such a provision, it is possible that you can end up paying the defendant’s attorneys’ fees if you sue them for an action related to the contract and lose your case.

As you can see, there are a number of ways you can be awarded attorneys’ fees in Illinois. However, the circumstances under which you can be awarded fees vary depending on your situation and what statutes and/or contracts are involved in your case. If you are drafting or preparing to enter into a contract, it is important that you consult an attorney to discuss any fee shifting provisions that may be included. If you are considering filing a lawsuit, it is also important that you consult an attorney to determine if there are any federal or state statutes that are applicable to your case that can help you recover your attorneys’ fees. That being said, it is equally important that you consult an attorney to determine if you could be held responsible for the opposing party’s attorneys’ fees.

To contact attorney Joshua Pagan regarding this article, you may contact him at jpagan@lavellelaw.com or 312-332-7555.