Attorney's Fees in New Jersey

How am I going to afford a lawyer?  Aren’t lawyers expensive?  If I win my case, does the other side have to pay my lawyer’s fees?

These are often the first questions that can arise in anyone’s head when they need a lawyer, and rightfully so.  Unfortunately, legal fees – how they are charged, and who ultimately has to pay them, is not always so easy.  Unfortunately, when you need a lawyer it can be very expensive.  In New Jersey, hourly fees are often $400 an hour or more.  Fortunately, we handle a number of different types of cases where our clients 1) don’t ever have to even think about a fee unless they win, and 2) can get the other side to pay our fees.  

Clients have the option of never having to worry about legal fees through a contingency fee agreement.  This type of agreement is most common in our personal injury matters - tort cases to recover damages for bodily injury due to the negligence or malpractice of others, including those caused by automobile and trucking accidents, medical malpractice, product defects, or any other cause of bodily harm.  In this type of agreement, a client agrees to pay a percentage of the amount that is recovered on their behalf, whether it be through settlement, or a jury verdict.  If there is no settlement or judgment at the close of the matter, meaning no settlement could be recovered or the jury did not see things our way - then the client does not pay any fee.  Additionally, in these cases the firm advances all the costs and you do not repay them unless you obtain a settlement or judgment.

In New Jersey, the agreement for a contingent fee arrangement must be in writing and outline the percentages of such fees in various instances.  These percentages are capped by the New Jersey Supreme Court.  Our rules of court also require the fee to be calculated on the net settlement.  This means the fee is determined after costs are deducted.  New Jersey Court Rule 1:21-7 sets the amount that the attorneys can recover under this type of contingency fee arrangement:

1) 33 and one-third percent on the first $750,000 that was recovered;

2) 30 percent on the second $750,000 that was recovered;

3) 25 percent on the next $750,000 that was recovered; and

4) 20 percent on the next $750,000 that was recovered. 


How Can I Get the Other Side to Pay My Legal Fees?

Outside of personal injury actions, Weir Attorneys generally handles their remaining matters on an hourly basis.  The hourly amount will always be agreed upon, and in writing, prior to any work being performed.  The next questions often asked is “well what if I win, doesn’t the other side pay me fees?”  The short answer is: Not usually. 

Generally, our Court’s adhere to the "American Rule," meaning that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Rendine v. Pantzer, 141 N.J. 292, 322 (1995).  There are many instances, however, where legal fees can, and must, be paid by the opposing party.  These include when there is express authorization for the recovery of fees by statute, court rule, or contract.  See State Dept. of Envt'l Protection v. Standard Tank Cleaning Corp., 284 N.J. Super. 381, 410 (App. Div. 1995) (quoting State Dept. of Envt'l. Protection v. Ventron, 94 N.J. 473, 504 (1983)

Therefore, New Jersey law sets out three main instances where your legal fees may be paid by the other side:  if it is expressly authorized  1) by  statute, 2) by court rule, or 3) by contract.  This article addresses some instances and examples of each in turn.

1)         Legal Fees According to Statute. 

There are a number of so-called “fee-shifting statutes” that provide for payment of the winning side’s legal fees.  On a federal level, these include well-known statutes, such as the Civil Rights Act, while here in New Jersey we have fee-shifting provisions in statutes such as the Law Against Discrimination and the Consumer Fraud Act.  In fact, when a person has suffered damages as a result of an unlawful practice under the New Jersey Consumer Fraud Act (“NJCFA”), they may be awarded “treble” damages, and reasonable attorney’s fees and costs. N.J.S.A. 56:8-19.

A lesser known part of the Consumer Fraud Act, but all too common occurrence, is violations of the New Jersey Contractor’s Registration Act.  The New Jersey Contractor’s Registration Act applies to home improvement contractors and governs a wide range of work homeowner’s regularly have performed: painting, landscaping, remodeling, flooring, and a number of common home improvements both large and small.  The Act  found at N.J.A.C. 13:45A-16.2 results in a complicated and robust regulatory scheme that requires, amongst other things, a written contract which includes descriptions of all the work to be performed, the right of a consumer to cancel the contract within three days, and various other information of the contractor be provided in writing. 

At Weir Attorneys, we represent homeowner’s who have unfortunately suffered at the hands of contractors who have failed to meet the requirements of the Act, as well as contractors and business who didn’t even know they were violating the Act.  While these type of cases are usually handled on an hourly fee basis, a homeowner can file suit under the NJCFA and the New Jersey Contractor’s Registration Act to not only rescind the contract, seek payment of damages sustained, but also, and perhaps most importantly, have the other side end up paying our  attorney’s fees pursuant to N.J.S.A. 56:8-19.


2)         Legal Fees By Contract

If a claim for breach of contract arises, it is possible that the prevailing party can turn to the language of the contract to have the other side pay the legal fees.  In such situations, it is important to note that New Jersey has a strong policy disfavoring shifting of attorneys' fees. See N. Bergen Rex Transp. v. Trailer Leasing Co., 158 N.J. 561, 569-70 (1999).  Such a policy has been grounded in the notion "that sound judicial administration is best advanced if litigants bear their own counsel fees.”  Department of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 504 (1983). 

Many times, however, parties to a contract may expressly agree that, in the event of litigation, the losing party pays the other side’s attorneys' fees.  If such a provision is clearly stated in the agreement, then a New Jersey Court can order the payment of fees at the end of a litigation.  See Satellite Gateway Communications, Inc. v. Musi Dining Car Co., 110 N.J. 280, 286 (1988).   Importantly, when such a contractual fee-shifting provision exists, however, the Court must strictly construe the provision in light of the general policy disfavoring the award of attorneys' fees. McGuire v. City of Jersey City, 125 N.J. 310, 327 (1991).   Therefore, while such “fee-shifting” provisions can be enforceable, they must be carefully worded, and will be the subject of Court scrutiny.  Here at Weir Attorneys, we see these types of contracts most often in the case of partnership disputes, breach of contract actions, and commercial landlord/tenant matters.

3)         Legal Fees by Court Rule


Finally, in addition to having the other side pay your legal fees through a statute, or contract, one can possibly turn to the New Jersey Rules of Court that allow fee-shifting in certain situations.  Indeed, New Jersey Court Rule 4:42-9 is entitled “Attorney’s Fees,” and subsection (a) expressly provides for “Actions in Which Fee is Allowable.”  These includes various actions upon a liability or indemnity policy of insurance, actions to foreclose tax certificates, as well as probate actions. 

We find many cases where individuals want to challenge a will but are unsure how they can afford a competent lawyer to go about doing that.  R. 4:42-9(a)(3) provides that “In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.”

Therefore, the literal reading of the Rule allows an award of fees when there is a reasonable challenge to the probate of a Will, even though the contestant of the will ultimately loses the case.  In fact, The New Jersey Supreme Court in In re Reisdorf, 80 N.J. 319, 326 (1979) held that “courts will normally allow counsel fees to both proponent and contestant in a will dispute.” As such, if you believe there is a valid reason to contest a will, such as undue influence, it is possible that, even if you lose, you could recover the fee from the estate.  Importantly, whether or not a litigant has a “reasonable cause” for contesting a will, and therefore entitled to reimbursement of fees, is left to the sound discretion of the Court.  This means that the award of fees will be based on many factors and the specific details of each case.  These types of cases require complicated litigation and consultation with a licensed attorney prior to bringing such a matter is a must.


Here are Weir Attorneys, we are always looking for ways to effectively litigate our cases while maintaining cost-efficient representation.  As such, when possible, we always have an eye towards instances and cases where we can get the other party, rather than our clients, to pay our fees.