Let’s assume that you don’t have a contract which provides that you can recover your attorney’s fees and costs. After all, this is the USA, not the UK where loser pays is the rule. Here in the USA, both sides pay their own lawyers. Except. Except when? Well, if there is a contract which says, in effect, “Loser Pays.” Is that the only time? No, there are other exceptions. (Aren’t there always?) One little-known exception to this rule is when the other side files an absolutely ridiculous lawsuit or appeal. Huh? How can that be?
Well, it’s complicated. (Isn’t it always?) Not really. What’s needed is the judge to order that the other side be sanctioned for frivolous litigation. What’s frivolous? A lawsuit is frivolous if it is completely without merit, does not either have the facts, the law or a good faith argument for changing the law, in its favor. This is a hard standard to meet. Almost all cases will meet at least 1 of these 3 tests. But not always. Some lawyers do more than push the boundaries–they break them.