Want a fee attorney? Get you opponent to pay your fees!
Normally, each side in a lawsuit pays their own attorney fees, win or lose. This is known as the American rule – as opposed to the English rule where the loser pays for both sides’ attorney fees. In Oregon, the American rule prevails unless there is a contract or statute that says otherwise. Some contracts provide for prevailing party attorney fees, others do not.
In tort cases, such as a negligence case involving an auto collision, there is no contract between the two parties and each party must pay its own way. In small tort cases, where the amount of the prayer (the amount you are asking the other side to pay) is $5500 or less, there is a law that if used correctly, will force your opponent to pay your attorney fees.
The statute that gives you a free attorney.
Oregon Revised Statute 20.080 provides that a prevailing plaintiff in a suit for no more than $5500 is entitled to have the defendant pay his or her attorney fees if, more than 10 days prior to filing suit, the plaintiff sent a written demand to the defendant for payment of the claim, and after filing suit the plaintiff wins a judgment for an amount greater than the defendant offered in the 10-day pre-filing period.
While not required, notice should be sent by certified mail, return receipt requested, so that the plaintiff can establish the date that the defendant received the written demand. Once the return receipt comes back in the mail, you count 10 days and after that day you can file suit. The suit must seek no more than $5500 in total damages. Then you must “beat the offer” that the defendant made during the 10-day period. For example, if you demand that the defendant pay you $5500 and six days later the defendant offers to pay $2000, then you must win a judgment for more than $2000 at trial in order for the defendant to pay your attorney fees. But you do not have to beat the offer by much. If you were to win a judgment of $2001 – beating the offer only by a dollar – the defendant would still have to pay your attorney fees. Of course if the defendant offers nothing within that 10-day period, you then only have to win a judgment of some monetary amount. There is no requirement that you obtain a judgment equal to your demand, you need only obtain a judgment that exceeds the defendant’s offer in order to be entitled to your attorney fees.
When the defendant does pay your attorney fee, he pays based on your attorney’s hourly rate and the number of hours worked on the case. The only limit is that the hourly rate and the total number of hours must be reasonable.
This statute is a very powerful tool. First, because the attorney fees can exceed the value of the claim itself, the ORS 20.080 attorney fee claim puts pressure on the defendant to make an offer that is generally more generous than the defendant likely would make otherwise. Second, it provides an incentive for attorneys to take small cases – cases that may be quite a bit of work and that they would not accept if not for this statute. Third, it helps plaintiffs because they do not have to share their award or judgment with their attorney – the other side is paying those fees!