Practice Tip: Using a Prevailing Party’s Pre-Trial Conduct to Reduce Attorneys’ Fees
By Jody M. Burgess
©2014 All Rights Reserved.
Post-trial motions in any lawsuit stemming from a real estate contract will undoubtedly involve an analysis of the prevailing party’s right to attorneys’ fees. Such analysis typically includes the reasonableness of the requested fee award by focusing on the hours worked, rate charged, and case challenges. These factors are certainly necessary when analyzing the appropriateness of any fee award, but equally important is the need to consider the pre-trial behavior of the adversary to determine whether the award of attorneys’ fees should be reduced on principles of equity. In the Second District Court of Appeals case of EnPalm, LLC v. Teitler Family Trust,1 the defendant unequivocally won the trial (and was found to be the prevailing party) but later suffered a ninety percent reduction in his recovery of attorneys’ fees because his pre-trial conduct unnecessarily increased litigation.