The Reality of Seeking Attorneys’ Fees Awards in Litigation
A common question many clients have when deciding to hire an attorney to defend them or bring a civil action on their behalf is, “will I be able to obtain attorney’s fees?” The answer to this question is nuanced.
In New York, in general, “the prevailing litigant ordinarily cannot collect attorneys’ fees from its unsuccessful opponents… [a]ttorneys’ fees are treated as incidents of litigation, rather than damages. . . [t]he exception is when an award is authorized by agreement between the parties, or by statute or by court rule.”
Where one of the stated exceptions does exist—instances where an agreement, statute, or court rule authorizes attorneys’ fees – the litigant seeking an award of these fees must also be the prevailing party. Being the “prevailing party” in a litigation is dependent on you winning your case – either through a Court decision after a motion for summary judgment (which takes the place of a trial) or a civil trial itself.
If the parties agree to settle before going to trial or engaging in motion practice that disposes of a case, neither party is entitled to attorneys’ fees.
Most cases in litigation do not proceed to a trial and settle beforehand, which forecloses the litigants’ ability to seek attorneys’ fees. In other words, if you and your adversary settle, there is no “winner” and no one party has “prevailed.” This makes an award of attorneys’ fees rare in the legal world.
Whether you are the party that initiated a case (the “Plaintiff”) or the person who is being sued (the “Defendant”) each side bears the responsibility for covering their respective attorneys’ fees while the matter is ongoing. Unless you have entered a contingent fee arrangement with your attorney, where your attorney has agreed to accept a portion of any monetary award you may receive, most clients do not have the option of paying attorneys’ fees at the very end of their case, via an award of attorney’s fees.
While it is rare for a Court to award a litigant attorneys’ fees at all, a new area of opportunity is opening with respect to claims of defamation. Pursuant to New York’s Civil Rights Law, if a Plaintiff alleges defamation against a Defendant and is not successful, the Defendant may pursue an award of attorneys’ fees. This emerging trend ensures that Defendants’ free speech rights are not infringed where they have not actually engaged in defamation of the Plaintiff and serves as a deterrent for Plaintiffs who feel slighted by spoken or written words of the Defendant(s) that do not amount to defamation.
In short, if you need to hire an attorney to engage in litigation on your behalf, play it safe and temper your expectations – regardless of how meritorious your claims are or you believe them to be, an award of attorneys’ fees from a Court is unlikely. Knowing this information before hiring an attorney will help you to better understand the true costs associated with litigating a case in State or Federal Court.
 Ambac Assur Corp v. Countrywide Home Loans, 31 NY 3d 218 citing Congel v. Malfitano, 31 N.Y. 3d 272, 290-291 
This is not to be considered legal advice. Please reach out to an attorney for information regarding your specific situation.