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Damages focus: under what circumstances are attorney fees and court costs awarded as damages in personal injury cases?

If you are either a plaintiff or defendant in a personal injury lawsuit, you are likely wondering what types of damages you can be rewarded. As this is likely one of the first questions you will ask your personal injury attorney, it is important to know what types of damages you can recover, and how to obtain those damages. In most personal injury cases, compensatory damages can be awarded. Compensatory damages are those that would completely rehabilitate a plaintiff.

A plaintiff will likely also recover any damages that would stem from the injury, and these damages are limited to those for all past, present, and easily determinable future damages. Generally, these damages stem from medical and hospital expenses, diminishing earning capacity, and pain and suffering. But under what circumstances can you recover attorney fees and court costs as well?

Federally and in Massachusetts, a party who is successful in a personal injury lawsuit regarding a civil rights violation can recover attorney’s fees and court costs. If the cause of action a personal injury suit is particularly frivolous, a court may order a plaintiff to pay attorney’s fees to a defendant. While these fees would cover a defendant’s attorney representation, they would also cover various court costs such as the fee for expert witnesses.

If you are a plaintiff in a personal injury suit, your attorney can make a claim for attorney fees. Of course, if you are not represented by counsel, and are acting as an individual, you are unable to recover damages for attorney fees. However, you may be able to recover for the reasonable cost of services as if you were represented by an actual attorney. Conversely, if you are a defendant in a personal injury case, you can avoid paying attorney fees and court costs by offering an acceptable settlement for damages. Once a case is over, you may not then recover attorney fees. Be sure you inform your personal injury attorney that you would like him or her to make a claim for these damages before your claim is moot.

There are also special situations regarding personal injury that can be awarded to a plaintiff, where the defendant is a public official. In these cases, if a plaintiff prevails by injunctive relief, he or she can also claim attorney fees. Additionally, if the personal injury lawsuit is pertaining to wiretapping, a plaintiff may be entitled to liquidated damages, actual damages, attorney fees and court costs.

It is important for parties to be aware of any jurisdictional requirements for damages, as the standard of damages is different in federal and state courts. Federal court personal injury cases require a detailed time record of attorney representation, so that attorney fees are approximately calculated. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 951-52 (1st Cir. 1984). This is generally calculated based on “lodestar figure”: the hours spent litigating the personal injury suit, multiplied by the fair market rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). If you would like to recover attorney fees and court costs, your personal injury attorney will keep detailed and accurate time logs in order to successfully get you the highest amount of recovery possible.

A plaintiff may also recover attorney fees in a landlord-tenant dispute. In Massachusetts, residential tenants are protected by case law and statutes and can obtain attorney fees. If a landlord breaches his or her duty, a tenant can recover up to three months’ rent or actual damages, as well as attorney fees and court costs. Additionally, landlord-tenant violations often bring rise to a Chapter 93A claim as well, which allow recovery based on unfair and deceptive business practices. If you find yourself in a landlord-tenant dispute, the court will likely grant attorney fees and court costs based on 93A.

Another area a plaintiff can recover attorney fees and court costs is in a discrimination suit. The anti-discrimination statutes in the Commonwealth are broad reaching, and encompass religion, age, national origin, gender identity, and sexual orientation. After following a complaint with the Massachusetts Commission Against Discrimination (MCAD), a prevailing plaintiff may recover attorney fees, in addition to compensatory damages and court costs.

If you need more information about recovery of damages and about personal injury law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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