Dear YouDig?

Dear YouDig?,
We just went through a ridiculous three-year odyssey with our commercial plumbing contractor on a 250 unit housing development. Plumber failed in designing its work, installing its work and, even when asked nicely, correcting its work. It was so bad that when we test flushed a toilet, the garage door opened and distant bells tolled. Well something like that. Anyway, we finally hired a replacement to make it right. The original plumber then had the gall to sue us based upon some crazy theory that we gave them bad criteria. We countered. Three years and hundreds of thousands of dollars later we “won” in court. We feel we should get our attorneys’ fees paid. Our lawyers say, “tough luck.” What is this nonsense?
Dear Quasimodo,
It may not seem very patriotic, but under so-called “American Rule,’ litigants in most civil cases cannot recover their attorneys’ fees. This is a common question and the reference to the American Rule is a conversation best had early in the proceeding. The American Rule does not apply if the issue is addressed by statute, there is a finding of fraud or punitive damages or … listen carefully because this one is for you … when the agreement includes a fee-shifting/prevailing party provision.
So before you get your bell rung next time, make sure to include a prevailing party clause in your contracts so you can recover attorneys’ fees while your adversary gets flushed! YouDig?