Avoiding Waiver When Seeking Attorney Fees
The right to recover attorney fees can be lost long before a case reaches judgment if litigators fail to preserve those claims properly at each stage of litigation. In a recent article published by the Virginia State Bar in Virginia Lawyer, Woods Rogers Principal Elaine McCafferty examines the procedural pitfalls attorneys should avoid when seeking fee shifting in civil cases.
In her article, “Avoiding Waiver When Seeking Attorney Fees,” Elaine explains that while the American rule generally requires litigants to pay their own attorney fees, a growing number of contracts, statutes, and common law exceptions now create opportunities for fee recovery. But those opportunities can quickly disappear if practitioners fail to preserve their claims properly at every stage of litigation.
“Preserving the right to seek attorney fees starts at the pleading stage,” Elaine writes. “Under Rule 3:25 of the Rules of the Supreme Court of Virginia, litigants must demand fees in an initial filing, such as a complaint or responsive pleading.”
The article walks through key considerations for preserving fee claims, proving the reasonableness of fees at trial, and pursuing appellate fee recovery under Virginia’s procedural rules. Elaine also highlights how strategic decisions early in litigation can affect whether attorney fees remain recoverable later in the case.
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