There’s no doubt about it, as Americans we live in an extremely litigious society. Across the country, court dockets are crammed with pending and ongoing lawsuits. And while cynics claim that this benefits greedy and unscrupulous lawyers, in reality it doesn’t benefit anyone.

When frivolous lawsuits go unchecked, lawyers are overworked, and can’t serve their clients effectively. Courts are overburdened and can’t function well, either. So this begs the question: What is being done to stop them?

This is where Florida Statute §57.105 comes into play.

What is Florida Stat. §57.105 and why is it important?

Fla. Stat. §57.105 allows someone who wins a lawsuit to recover attorney’s fees in certain circumstances. At its core, the statute allows a court to award “a reasonable attorney’s fee” to a party that wins a lawsuit based on its own initiative “or a motion of any party.” If this happens, the losing party and his or her lawyer may each be responsible for paying the prevailing party’s fees and costs.

This applies to:

  • Any claim or defense;
  • Made at any stage of civil litigation or related activities;
  • In which the court determines the losing party; or
  • His or her lawyer knew or should have known;
  • That said claim or defense;
  • Lacked any legal or factual merit whatsoever;
  • When it was first presented to the court; or
  • At any point prior to trial.

The first of several changes to the statute (made by Florida lawmakers in 1999) was specifically designed to “reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available.” Wendy’s of N.E. Florida, Inc., v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003).

Another change, made three years later, created a “safe harbor” provision. This affords someone who has made a frivolous claim or defense one last chance to withdraw it. It also allows a lawyer to reconsider a baseless legal strategy “taken primarily for the purpose of unreasonable delay.”

Filing a motion to recover attorney’s fees under Florida Stat. §57.105

Clearly, recovering attorney’s fees under Fla. Stat. §57.105 is crucial for anyone involved in a baseless lawsuit. Due to the seriousness of this penalty, however, several strict rules must be complied with and certain procedural requirements must be met. For that reason, it’s important to hire an attorney that’s familiar with the rule and has utilized it during litigation.

As a rule of thumb, your attorney should take the following steps if you believe a frivolous lawsuit has been filed against you:

  • First, a “safe harbor” letter is sent to the opposing party (or his/her lawyers). In it, the nature of the frivolous claim(s) are described in detail, along with a demand that the claim(s) be dismissed. A copy of the proposed Motion under Fla. Stat. §57.105 should also be attached to the letter.
  • If the opposing party doesn’t comply with the demand for dismissal within 21 days, the actual §57.105 motion is filed with the court.
  • The case ensues as it typically would, with each side allowed to conduct discovery, etc.
  • Typically, a hearing on the §57.105 motion would only be held after the conclusion of the case, at which point it should be clear whether the claim(s) did, in fact, have merit.

As accomplished Fort Lauderdale attorneys, we are legally obligated to act in your best interests when you hire our firm. That means you can count on us to ensure that no one takes advantage of you in any way. If you have any reason to suspect that someone has filed a baseless lawsuit against you, time is of the essence. Contact our legal team online or by phone at (954) 334-1122 to schedule an initial consultation, today.

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