It’s a question that my savvy litigation clients know to ask, before filing suit. No one wants to go through the time and expense of a lawsuit, only to find, after winning the case, that they’ve spent more money on legal fees than they were awarded from the other side.
A good rule of thumb (with some procedural exceptions) is that the prevailing party in a lawsuit may be awarded fees only if a claim for fees is expressly provided in a contract or in a statute which is at issue in the lawsuit. So, prevailing parties in negligence suits, for example, aren’t typically entitled to fees.
Keep in mind, however, that since only “reasonable” fees will be awarded, and the amount to be awarded is largely in the judge’s discretion, even if you win, you will rarely be awarded 100% of the money you spend on the litigation, and an award of fees is, of course, only as good as your opponent’s ability to pay.
One way to protect yourself, is to consult with counsel, before entering into any contract, regarding the pros and cons of including an attorneys’ fees provision.