In Rare Cases, Attorney Fees Can Be an Element of Damages

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

When people sue in court normally each party pays their own attorney fees.

This means that if a plaintiff files a lawsuit the plaintiff must bear the cost of their own attorney. Win or lose.

The same is true for the defendant.

There is an exception however in Indiana if the lawsuit filed is seeking damages for an adult wrongful death.

Indiana law says that attorney fees are an element of damages if a plaintiff’s estate pursues and wins an adult wrongful death lawsuit.

In other words, in Indiana, the estate may recover the cost of pursuing the case if the estate wins in court, and the costs it may recover include the cost of hiring an attorney to pursue the action.

Say an estate is opened by a widow to sue for the wrongful death of her husband. Say the estate wins at trial. After being successful at trial, the estate can petition the court for an order compelling the defendant to pay the estate’s attorney fees and other costs associated with going to trial.

The only reason this is permitted is because there is a specific statute that permits attorney fees to be recovered in wrongful death estate cases for adults. If you think this is a great benefit, it is not.

The same statute greatly restricts the other damage elements that can be recovered in a wrongful death situation. For example, the estate cannot recover for the pain and suffering experienced by the deceased.

But how are attorney fees calculated in this situation?

Typically a plaintiff’s attorney proceeds on a contingent fee basis.

But when an estate is seeking a recovery of attorney fees, the estate can submit evidence of the reasonable hourly rate for the attorney handling the case and submit evidence of the number of hours put in by the attorney handling the case.

Proof as to the value of attorney fees may require expert testimony.

This testimony may come from an attorney who has nothing to do with the case, who testifies in court as to the reasonable value of the services rendered to the estate by the attorney who handled the trial for the estate.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

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