The Expert Podcast

So how can you get your attorney's fees paid for by the other party in your court case? If you have a lawsuit against another party or you're being sued, are there ways for your legal fees—or at least part of them—to be paid by the other party? Some contracts have a very specific clause that says the prevailing party gets some or all of their attorney fees paid for by the losing party. But even if you don't have such a contract, there may be ways to have some of your attorney's fees, investigative fees, or costs covered by the other party.

Paid for by the other party, even if you lose—how does that work? Well, in many states, there is a provision called the wrongful act doctrine. Now, remember, we're not attorneys, and we're not giving you legal advice. This may or may not apply in your scenario, but it's something you should look into. As investigators, we always look to see if there is activity that the other party did that might be egregious or improper, which could trigger this wrongful act doctrine.

There are many things that could trigger sanctions or the payment of legal fees. Sometimes it's hiding assets, concealing information, failing to provide discovery, or not responding to a subpoena properly. You need to identify all the potential triggers so that you can present them to the court. If the other party engaged in something improper—maybe a fraudulent conveyance or transferring money at the wrong place or time—you want to bring it to the judge's attention.

Many times, the other party will also be conducting an investigation on you, and they might do something wrong. There are many investigative techniques that are not proper. Laws such as the Gramm-Leach-Bliley Act, the DPPA, and the Consumer Protection Privacy Act set standards for investigations. If the other side fails to follow these standards, that could also trigger the wrongful act doctrine. Once triggered, you can go to court and request that the other side pay for your legal fees, investigative costs, sanctions, court fines, or even additional discovery from them.

Now, here's another fact about attorney's fees. If your contract with another party triggered this lawsuit—perhaps with a business—and it states that they get attorney's fees if they win but says nothing about what happens if you win, then in most states, the prevailing party clause automatically applies to both sides. It can't be one-sided. If the contract benefits them, then it must also benefit you. Be sure to check with your attorney. Again, we are not giving legal advice, just pointing out what we've seen in cases.

You don't want to miss out on any advantages in your case. The court has the authority to apply the wrongful act doctrine to make the case equitable. This doctrine permits the recovery of attorney’s fees when the other side's actions—or even omissions—cause the opposing party to incur legal costs. They don’t have to do something intentionally wrong; even an oversight or failure to act can trigger this provision if it results in additional expenses for the other side.

These expenses could include defending the case, maintaining the case, or even staying in litigation. Sometimes, without this recovery, a party might have to drop the case due to financial constraints. These costs are often classified as special damages when the defendant’s wrongful act forces the plaintiff into litigation in the first place. If the lawsuit was initiated because of improper acts from the other party, you should cast a wide net to identify these activities.

Often, this kind of research goes beyond what an attorney typically does in depositions and discovery. Strategic investigation, research, analysis, and even surveillance might reveal actions that could give you a legal advantage or help recover attorney's fees.

When determining whether the wrongful act doctrine applies in your case, you won’t always find direct references in legal statutes or case law. Instead, it usually appears in the form of motions—such as a motion to recover costs or a motion to compel discovery. These motions operate under the same principle as the wrongful act doctrine, even if the exact term isn’t explicitly stated in legal texts.

In almost every state, this is a long-recognized legal principle that serves as an exception to the general rule on attorney's fees. The standard rule in most jurisdictions is that each party pays for their own attorney’s fees—unless stated otherwise in a contract. The wrongful act doctrine is one of the few exceptions to this rule, and it is well established in nearly every jurisdiction.

You should take advantage of this provision whenever possible because, in almost every litigation case, the other side will make a mistake. If you catch it and use it strategically, you can benefit financially and gain an upper hand in the case. It could mean getting more motions approved, receiving additional case allowances, or even gaining a significant advantage over the opposing party.

This doctrine has been established in case law for over 100 years. Don’t miss out on its benefits just because it's not widely discussed. You don’t want to let the opposing party steamroll you by hiding assets, withholding documents, or concealing information that could help you win. If they make a mistake, use it to your advantage—both legally and financially.