When Can I Get Attorneys Fees Awarded In A Colorado Lawsuit?
Posted July 03, 2023 in Uncategorized
ATTORNEY FEE SHIFTING IN COLORADO: WHEN WILL A COURT AWARD ME ATTORNEYS FEES AND COSTS IN A LAWSUIT?
This is one of the most common questions potential clients ask during our consultations. And, it stands to reason. After all, if there’s a way to sue someone or defend a lawsuit and not have to pay for an attorney–while getting the benefit of an attorney–wouldn’t you want to know how to do that?
The good news is: there is a way.
The bad news is: the road to an attorney fee award is not always easy.
ABSENT A STATUTE, RULE, OR CONTRACT EXPLICITLY ALLOWING AN ATTORNEY FEE AWARD IN A PARTICULAR CASE, EACH PARTY BEARS THE COST OF ITS OWN ATTORNEY FEES.
THE ATTORNEY FEE SHIFTING DOCTRINE
The Unites States adheres to the doctrine, aptly named the “American Rule,” that by default, each party in litigation bears its own attorney fee costs. The legal system in other countries can vary in that the loser of a lawsuit will automatically pay the winner’s fees. Not so in the U.S. Each state will have its own rules and statutes in effect that governs how and under what specific circumstances another party to a lawsuit can obtain reimbursement of its attorneys fees from the other party. In other words, states pass laws that provide the exceptions to the default rule that each party will bear its own attorneys fees.
WHAT IS THE COLORADO RULE ON FEE SHIFTING?
The rule in Colorado is summarized this way: Absent a statute, rule, or contract explicitly allowing an attorney fee award in a particular case, each party bears the cost of its own attorney fees.[1]
1. CONTRACTS THAT PROVIDE FOR ATTORNEY FEES.
In general, when a contract contains a fee shifting provision that awards attorney fees to the prevailing party in a dispute, a court will enforce that provision.[2] However, just like anything else in law, it is not always that simple. There are some statutes out there, especially in the real estate context, that prohibit one-way fee shifting provisions or otherwise apply to them. For example, leases may no longer contain one-way fee shifting provisions (provisions that only award attorney fees to one of the two parties if that party has to enforce a lease).[3] For this reason, if you are a landlord or property manager, do not forget to check (often) the ever-evolving landlord-tenant statutes at C.R.S. Title 38, Article 12 and have your leases updated to conform to the law. Another statute that speaks to contractual fee shifting provisions states that the prevailing party in an eviction lawsuit (if the lease contract says so) can recover attorney fees.[4]
2. STATUTES THAT PROVIDE FOR ATTORNEY FEES.
There are several statutes in Colorado that provide for an attorney fee award in certain types of cases. Here are a few examples:[5]
- Civil Theft (C.R.S. 18-4-405)
- Eviction Cases (C.R.S. 13-40-123)
- Bias Motivated Crime Damage Recovery (C.R.S. 13-21-106.5)
- Destruction/Bodily Injury caused by Minors (C.R.S. 13-21-107)
- Check Fraud/Failure to Pay Upon Presentment (C.R.S. 13-21-109)
- Civil actions dismissed under C.R.C.P. 12(b) that involved death or injury (C.R.S. 13-17-201)
- Unlawful use of Personal Identifying Information (C.R.S. 13-21-122)
- Trust Fund Statute Violations (C.R.S. 38-22-127)
- Mechanics Lien Violations (C.R.S. 38-22-128)
- Consumer Protection Act Violations (C.R.S. 6-1-113)
3. COURT RULES THAT PROVIDE FOR ATTORNEY FEES.
Various court rules also may allow the judge discretion to order attorney fees for certain reasons, such as litigation misconduct.
- Frivolous, Vexatious, Bad Faith, and Groundless Actions (C.R.C.P. 11; 121; see also C.R.S. 13-17-102)
- Discovery Abuses (C.R.C.P. 37; 121)
- Costs Awarded to prevailing party at trial (C.R.C.P. 54; see also C.R.S. 13-16-101 et seq.)
- Damages for Abuse of Process Claims (CJI-Civ. 17:11(2)
SO YOU’RE ENTITLED TO ATTORNEY FEES AND COSTS, NOW WHAT?
After reviewing the entitlement statutes and rules listed above, you may feel that your case warrants reimbursement of attorney fees and costs. However, that is not the end of the story. How exactly do you go about recovering your attorney fees? To do so, you need to file a motion, bill of costs, declaration in support, fee statements, fee agreement, and potentially other supporting documentation. This is where it becomes complex. You will also need to argue to the court that your fee award requested is reasonable according to case law and rules encompassing reasonableness. And, if you are seeking a fee sanction against a pro se party, you’re going to face an uphill battle considering courts will give great deference to a pro se party’s ability to competently litigate his/her own case.[6] However, it is not impossible.[7] Once you obtain your judgment for attorney fees, you will need to take action to collect that judgment.
CONTACT US TODAY FOR HELP.
For more information on topics related to recovery of attorney fees, give us a call at 303-268-2867 or complete a consultation request form.
[1] Allstate Ins. Co. v. Huizar, 52 P.3d 816, 820-821 (Colo. 2002).
[5] This is not an exhaustive list.
[7] Fair v. Wise, 753 P.2d 780, 781 (Colo. App. 1987).
DISCLAIMER
The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.