Sometimes in a civil case, an attorney will threaten a pro se litigant with attorney’s fees. If you don’t drop your case, here comes a threat of attorney’s fees. Bam! If you pursue a defense too eagerly. Boom! If you’re digging too deeply in discovery. Splat!
They didn’t expect this fight from you and are willing to use what they have to beat you down. One thing they have is the threat of attorney’s fees. But you’re pro se, the idea is not to pay attorney’s fees. So don’t let them bully you out of pursuing your case.
The Problem With Attorney’s Fees
Where did the idea of attorney’s fees come from? Attorney’s fees began as a sanction for frivolous lawsuits, but they often inhibit the filing of meritorious claims. This alone should be enough to nullify them, but no such luck.
To add insult to injury, a lawyer’s client doesn’t have to worry about paying fees to a pro se litigant to defend themselves or pursue a claim. Pro se litigants cannot get attorneys fees or other compensation for the time they spent litigating meritorious cases. That type of imbalance between the two parties is a due process issue.
There then is the problem with attorney’s fees, the barring of meritorious claims, and denial of due process.
Courts Can Calculate the Costs of Pro Se Litigation
Attorney’s fees should not be awarded against a pro se litigant with a supportable claim or defense. Further, when their opponents pursue frivolous claims or defenses, a self-represented litigant should be allowed to move for litigation fees in addition to court costs.
It should not be difficult to determine the value of prosecuting or defending a case for a pro se litigant. Courts routinely calculate the costs of injury or damages in lawsuits–from emotional distress to medical malpractice to, gasp, attorney’s fees. There are formal calculations in case law! Surely, they can calculate a reasonable amount of compensation owed a pro se litigant for defending or litigating their case.
It’s not that courts can’t make these calculations. It’s that they won’t. Since they won’t, lawyers can continue to threaten pro se litigants, and pro se litigants will continue to get nothing for the work they’ve done to win a case.
What You Can Do About Attorney Threats
Anytime an attorney gets to the point of bullying you, you’re doing something right. You’re not supposed to have gotten this far in the case. Most of the time, the threat of attorney’s fees is just that. A threat. Below are some options to consider in light of an attorney fee threat.
- If you get a motion for attorney’s fees, persuade the judge that your claim or defense had merit, and granting your opponent attorney’s fees in light of that is a due process violation. There is case law to back you up.
- Then, at the hearing, make the attorneys prove the value of their services. Did that deposition really have to take place? Did they have to fly to Miami to get evidence? Oftentimes, this argument will help to reduce fees.
- If you get a judgment against you, pay the fees a little at a time. A gleeful lawyer will typically work with you on this.
- Appeal an attorney’s fees judgment against you with a due process argument. Keep in mind, this may cost more money.
- If you’re comfortable with it, walk away from a judgment, and let your opponent’s lawyer come after you for the money. Sometimes they will, sometimes they won’t.
If you win a judgment, move for litigation fees in addition to court costs. Argue the value of your time in litigating the case. Depending on the judge and jurisdiction, you may have a chance of getting it.
Oftentimes, attorney’s fees are just a threat. If you have a meritorious case that’s worth fighting for, don’t be bullied. Perseverance might be the better choice than retreat.