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  • Writer's pictureW. Cory Reiss

A plea against the fee: When your best argument is for ‘mercy,’ it may be too late.

A jury had hit three defendants with $65,000 in compensatory and punitive damages, and now their lawyer was asking a judge not to award our client’s attorney’s fees as well.

Opposing counsel’s only real argument was more of a prayer: “Have mercy on them.”

The defendants — Samantha Frye, Paul Frye, and Edgar Santos-Cardenas — were former employees of Wilmington's Eternal Sunshine Café who had testified they didn’t take and delete the restaurant’s database of signature recipes. The jury found they had done just that. (See our October 29, 2021article on the verdict in News.)

Given especially their multiple refusals before and during trial to admit under oath what they had done, the judge last week granted every penny of our request for $46,610.80 in attorney’s fees and costs.

That a fee award was even possible for Eternal Sunshine made this case a bit unusual. The case was even more so because the court granted the request in full.

An award of fees can be tough to get — impossible, actually, without victory on a claim for which fees are specifically authorized.

Prospective clients often ask about the possibility of getting attorney’s fees back if they sue someone, and they usually dislike the answer. First, of course, you have to win. Next, like most states and in the federal courts, North Carolina doesn’t force the losing party in a lawsuit to pay the winner’s fees unless a statute specifically authorizes it.

About 30 types of claims can carry an award of fees by statute in North Carolina. Computer trespass and misappropriation of trade secrets are two such claims, which Eternal Sunshine won at trial against its former employees.

Even when authorized by statute, however, whether to award fees and how much are almost entirely in the judge’s discretion. A judge can usually decide to award all, some, or none of the request. Some judges dislike awarding fees and view the cost of litigation as a “cost of doing business.” If fees are to be awarded, however, the judge is expected to make a detailed assessment of whether the fees requested are “reasonable,” and if not, reduce or deny the request.

Plenty of fee requests get shredded in that process.

But while no plaintiff can count on winning fees allowed by statute, no defendant should count it out either.

Defending lawyers often disregard the threat of attorney’s fees as improbable — right until they’re left without a better argument than for “mercy.”

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