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Who's The' Prevailing Party'? You May 'win' And Still Not Collect Attorney's Fees

Wednesday, August 01, 2012 05:39 am


Language granting attorney's fees to the "substantially prevailing party" appears regularly in dispute resolution contract clauses. But that phrase does not mean what it appears to mean. The "prevailing party" isn't necessarily the "winning party" or even the party that won a substantial portion of the disputed claims. Here's why.

Interpretation rests on the role you play

As discussed in the July 2012 issue (see the "Editor's Note" in CCM, Vol.34, No.7, p. 53), a court's interpretation of "prevailing party" is sometimes based on who the party is: the claimant or the defendant. 

For example, if the claimant loses, then the defending "winning" party may get attorneys' fees for its defense only if it can prove that the claims were frivolous. On the flipside, if the claimant is successful, it can get attorneys' fees without having to prove that the other party's defense was frivolous. See Evergreen Community Power LLC v. Riggs Distler & Co., Inc., 2012 U.S. Dist. Lexis 66594 (E.D. Pa. May 11, 2012).

Interpretation rests on what you succeeded at

The "prevailing party" term can also be defined by the proceeding in which the party prevailed. In Frog Creek Partners, LLC v. Vance Brown, Inc., 2012 Cal. App. Lexis 625 (May 24, 2012), both parties appeared to have prevailed--they each "won" an argument up for dispute. A trial court found that they were both "prevailing parties" and awarded a portion [...]

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