One consistent question clients ask during a consultation is: “How much is this going to cost?”
Fair question. Hard answer.
Every case is not about who was right. The case is always about proof, leverage, timing, risk, and cost. The cost depends on the facts, the documents, the witnesses, the court, the opposing party, the opposing lawyer, how much discovery is needed, whether experts are involved, whether the case settles early, and whether either side decides to turn a business dispute into trench warfare.
But here is the part many people miss: winning does not automatically mean the other side pays your attorneys’ fees.
Florida generally follows the “American Rule,” which means each side pays its own lawyers unless there is a recognized legal basis to shift fees. The Florida Supreme Court has explained that attorneys’ fees are not recoverable just because someone wins. There must be a contract, statute, rule, or recognized legal basis authorizing them. See Price v. Tyler, 890 So. 2d 246 (Fla. 2004).
In Florida litigation, the main fee-recovery paths are: Contract. Statute. Sanction.
KNOW WHICH PATH APPLIES BEFORE YOU FILE, BEFORE YOU DEFEND, AND DEFINITELY BEFORE YOU REJECT A SERIOUS SETTLEMENT PROPOSAL.
I. Contract: read the fee provision first
If your dispute involves a contract, start there.
Commercial leases, purchase agreements, operating agreements, promissory notes, construction contracts, settlement agreements, and service agreements often contain attorneys’ fee clauses. These provisions may say that if one party has to sue to enforce the agreement, the prevailing party gets its reasonable attorneys’ fees and costs.
Why this matters:
- Fee provisions change leverage.
- They affect settlement strategy.
- They can make a smaller dispute worth pursuing.
- They can also make a weak claim or defense more dangerous.
Pro move: do not assume a one-sided fee clause only benefits one side. Under Fla. Stat. § 57.105(7), if a contract gives one party the right to recover fees for enforcing the contract, the court may also allow the other party to recover fees if that party prevails.
Translation: a one-way fee clause can become a two-way street.
II. Statute: some claims come with fee-shifting built in
Some Florida statutes create a right to recover attorneys’ fees. Others do not.
That distinction matters. A lot.
a. Civil theft
Florida’s civil theft statute, Fla. Stat. § 772.11, allows a successful claimant to recover reasonable attorneys’ fees and court costs.
But it cuts both ways. A defendant may recover fees if the court finds the civil theft claim lacked substantial factual or legal support.
Client takeaway: civil theft can be powerful, but it should not be thrown into a lawsuit just because it sounds aggressive.
b. FDUTPA
Florida’s Deceptive and Unfair Trade Practices Act also has a fee provision. Under Fla. Stat. § 501.2105, the prevailing party in certain FDUTPA litigation may recover reasonable attorneys’ fees and costs from the nonprevailing party.
Important word: may.
FDUTPA fee awards involve court discretion. That means a prevailing party can seek fees, but the court still evaluates whether fees should be awarded and in what amount.
c. Proposal for settlement
Florida’s proposal for settlement statute, Fla. Stat. § 768.79, is another statutory fee-shifting tool.
If a party serves a qualifying proposal and the opposing party rejects it, fees may shift if the final result triggers the statutory threshold. In plain English: reject the wrong offer, get the wrong result, and you may be paying the other side’s attorneys’ fees from the date of the proposal.
Why this matters:
- Statutory fee claims can create leverage.
- They can make settlement more likely.
- They can also create exposure if the claim is weak, overcharged, or poorly supported.
III. Sanctions
Some fee exposure is tied less to the underlying claim and more to how the litigation is handled. This is where proposals for settlement and § 57.105 deserve special attention.
a. Proposal for settlement: statutory tool, sanctions effect
A proposal for settlement is created by statute, but it operates like a litigation pressure device.
The statute is Fla. Stat. § 768.79. The procedure is governed by Florida Rule of Civil Procedure 1.442.
That rule matters. A proposal must be properly timed, properly worded, and properly structured. Rule 1.442 also gives the court discretion to disallow fees if the proposal was not made in good faith.
Pro move: treat every proposal for settlement like a litigation pressure point, not a routine email attachment.
b. Section 57.105: unsupported claims, defenses, and delay
Fla. Stat. § 57.105 allows a court to award attorneys’ fees when a party or lawyer knew or should have known that a claim or defense was not supported by the material facts or existing law.
It can also apply to conduct taken primarily for unreasonable delay.
This is not just a “you lost, so pay me” statute. Courts do not award § 57.105 fees simply because one side loses. The issue is whether the position was unsupported, or whether the conduct was improper.
Also critical: party-filed § 57.105 motions generally require compliance with the 21-day safe-harbor procedure.
Why this matters:
- Weak claims can become expensive.
- Frivolous defenses can backfire.
- Delay tactics can create fee exposure.
- The procedural requirements matter.
c. Court’s inherent authority: the emergency brake
Florida courts also have limited inherent authority to impose attorneys’ fees for bad-faith litigation conduct. In Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002), the Florida Supreme Court recognized this authority, but made clear that it is narrow and requires due process.
This is the emergency brake, not the steering wheel.
Courts can use it when litigation conduct crosses the line into bad faith, but it is not a substitute for a contract, statute, or properly invoked rule.
Why the consultation answer is usually “it depends”
When a client asks what litigation will cost, the honest answer depends on several moving parts:
- How strong are the claims?
- How strong are the defenses?
- How organized are the documents?
- How many witnesses are involved?
- Will experts be needed?
- Is the other side rational?
- Is there insurance?
- Is there a contract fee provision?
- Does a statute shift fees?
- Can a proposal for settlement create leverage?
- Is anyone engaging in sanctionable conduct?
That is why two cases that look similar on paper can cost very different amounts.
One case settles after a demand letter.
Another requires written discovery, depositions, motion practice, mediation, and trial prep.
Same courthouse. Different economics.
RAK: Litigation strategy with the economics in mind
At RAK, we evaluate fee exposure at the beginning of the dispute, BEFORE the case has already become expensive. Fee entitlement, fee exposure, and settlement leverage can affect whether to sue, defend, settle, mediate, serve a proposal for settlement, or narrow the issues before litigation costs escalate. We can:
- Review contracts for fee-shifting language.
- Identify statutes that may create fee entitlement or fee exposure.
- Evaluate civil theft, FDUTPA, and other statutory claims before they are filed.
- Use proposals for settlement strategically.
- Pursue or defend § 57.105 sanctions when appropriate.
- Pressure-test whether the fight makes economic sense before the meter runs too far.
If you are involved in a Florida business dispute, construction dispute, contract case, lien dispute, or commercial lawsuit, the attorneys’ fee issue should be evaluated early. The right strategy depends not only on whether you can win, but whether the economics of the dispute justify the fight. Contact RAK Law Firm to discuss how attorneys’ fees, costs, and settlement leverage may affect your Florida litigation strategy.
Disclaimer
This is general information, not legal advice. Fee entitlement is fact-specific and deadline-sensitive. If you are involved in a Florida business dispute, construction dispute, contract case, or commercial lawsuit, speak with counsel early so the litigation strategy matches the economics of the case.