Seeking Attorney’s Fees In A Personal Injury Case

In the typical case in civil litigation, the winning and losing sides are responsible for their own attorney’s fees. There is an exception to this rule under Georgia law. If a party acts in bad faith in the underlying transaction (committing acts of fraud and/or attempting to damage the Plaintiff, as an example) or is guilty of stubborn litigiousness (pursuing claims or defenses based on frivolous legal and factual defenses) then in that event, attorney’s fees can be awarded. The Code Section in this regard is O.C.G.A. § 13-6-11.
Another unique provision of Georgia law is that a court may consider a contingent fee agreement and the amount of fees it would generate as evidence of “usual and customary fees” in determining both the reasonableness and the amount of award of attorney’s fees. In other words, if a victim in a personal injury suit should be further victimized by the bad faith and stubborn litigiousness of the person who caused their injuries, they may be entitled to attorney’s fees as part of their damages and can use a contingent fee contract with their own attorney as evidence in support of their claim.
If an innocent victim in a personal injury case is subjected to bad faith in the underlying transaction through acts of misconduct, sabotage, spoliation of evidence or false testimony and/or should be subjected to frivolous defenses and is caused unnecessary trouble and expense in the litigation process, then not only should they seek compensation for the personal injuries sustained as well as medical expenses, lost wages and other compensatory damages, they should also seek to recover attorney’s fees. In this regard, their own attorney can testify that the contingent fee agreement is a reasonable and customary arrangement in such cases and that the award of contingent fees would be the reasonable and customary and necessary amount of fees to pursue justice for the client. There is a good Georgia case which holds that the contingent fee agreement in and of itself is “a valid indicator of the value of attorney services.” See Home Depot USA v. Tvrdeich, 268 Ga. App. 579, 584, 602 S.E. 2d 297 (2004).

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