Decoding Attorney Fees: What You Need to Know in Virginia Civil Cases

Written by: Callie Kyhl

When someone fails to fulfill their obligations and refuses to make amends, the wronged party often believes they can recover attorney fees if they are forced to take legal action. After all, it’s not their fault they had to sue—so shouldn’t they be entitled to their legal costs? Not necessarily.

 In Virginia, the general rule in civil litigation is that each party is responsible for paying their own attorney fees, regardless of the case outcome. This principle is known as the “American Rule.” However, there are notable exceptions that may allow a prevailing party to recover attorney fees.

1. Statutory Provisions
   Virginia law provides certain statutes that allow for the recovery of attorney fees in specific cases. For example, under the Virginia Consumer Protection Act (VCPA), the Fair Debt Collection Practices Act (FDCPA), and other consumer protection laws, prevailing parties may be entitled to recover reasonable attorney fees. These statutes typically specify that the prevailing party is entitled to attorney fees if they successfully win the case.
2. Contractual Agreements
   In some civil cases, such as those involving contracts, the contract itself may include a provision that allows the prevailing party to recover attorney fees. If the contract stipulates that one party is entitled to attorney fees in the event of a dispute, and the party prevails, the court can enforce this provision.
3. Bad Faith or Frivolous Litigation
   Virginia courts may also award attorney fees if one party acts in bad faith or engages in frivolous litigation. This includes situations where a party’s claims are deemed groundless, or where a party intentionally delays or obstructs the legal process. In such cases, the court may award attorney fees to the prevailing party as a deterrent against abusive litigation practices.
4. Fraud
   In fraud cases, especially where fraudulent concealment or intentional misrepresentation is involved, a court may consider awarding attorney’s fees. The award is typically tied to the defendant’s conduct and the extent of the harm caused by the fraud. However, fraud requires a higher burden of proof and factual specificity, so it is important to consult with an experienced attorney about whether you have a sufficient factual basis for fraud.

Conclusion
While the “American Rule” generally prevents the automatic recovery of attorney fees in Virginia civil cases, exceptions exist where specific statutes, contractual terms, fraud, or bad-faith conduct justify an award of attorney fees. Parties considering whether to file suit should consult with an experienced civil litigation attorney to determine whether they have a legal and factual basis for attorney fees before bringing a claim. Parties who have been threatened with a lawsuit should also consult with counsel to determine their exposure for attorney fees incurred by the other side. This information will enable parties on either side of a civil claim to weigh the risks and benefits of a lawsuit compared to other dispute resolution options.#LawAndRegulation #ComplianceMatters #VFNLaw

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer