Turning the Tables on Plaintiffs: Recovering Attorneys’ Fees as a Prevailing Defendant

If someone files suit against me and I win, can I force the other side to reimburse my legal fees? Traditionally, the answer has been no – American courts follow the “American Rule,” under which each litigant generally pays his or her own attorney’s fees, win or lose.

There are exceptions to the “American Rule,” but they often favor plaintiffs. For example, prevailing plaintiffs in statutory employment or civil rights cases are presumptively entitled to attorneys’ fees, but the reverse is not true (leading defendants to lament that the deck is stacked against them).

The Tennessee legislature, however, has turned the tables, permitting defendants to recover attorneys’ fees under certain circumstances:

•  Tenn. Code Ann. § 20-12-119(c), which was amended in 2012, allows a defendant who obtains dismissal under Rule 12 for failure to state a claim to recover its fees:

“[W]here a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney’s fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties. The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.” Id. (emphasis added).

• Tenn. Code Ann. § 29-20-113(a), enacted in 2016, allows governmental employees sued in their individual capacity to recover “attorneys’ fees and costs” if they prevail:

“[I]f a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person’s individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys’ fees and costs incurred by the employee in defending the claim filed against the employee.” Id. (emphasis added).

Under both statutes, the award of fees to a prevailing defendant is mandatory – the court “shall” award fees. As a result, prevailing defendants shouldn’t merely write off their defense costs as a cost of doing business. Rather, these defendants should at least consider seeking reimbursement under Tenn. Code Ann. § 20-12-119(c) or § 29-20-113(a).

[Note: There are additional methods of recovering attorneys’ fees on behalf of a prevailing defendant, but further discussion is beyond the scope of this post.]

*Photo Credit: Photo by ponsulak via freedigitalphotos.net.

The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.