Recovering Attorney’s Fees In A Frivolous Lawsuit

There’s no doubt about it, as Americans we live in an extremely litigious society. Across the country, court dockets are crammed with pending and ongoing lawsuits. And while cynics claim that this benefits greedy and unscrupulous lawyers, in reality it doesn’t benefit anyone. When frivolous lawsuits go unchecked, lawyers are overworked, and can’t serve their clients effectively. Courts are overburdened and can’t function well, either.

So this begs the question: What is being done to stop them? This is where Florida Statute §57.105 comes into play. Florida’s default rule — the “American Rule” — is that each side pays its own attorney’s fees, win or lose, unless a statute or a contract says otherwise. Section 57.105 is one of the most important exceptions: it makes the filer of a frivolous claim (and, often, the filer’s lawyer) pay for it.

What Is Florida Statute § 57.105 — and Why Is It Important?

Fla. Stat. §57.105 allows someone who wins a lawsuit to recover attorney’s fees in certain circumstances. At its core, the statute allows a court to award “a reasonable attorney’s fee” to a party that wins a lawsuit based on its own initiative “or a motion of any party.” If this happens, the losing party and his or her lawyer may each be responsible for paying the prevailing party’s fees and costs.

The statute’s text is precise: the court shall award a reasonable fee, including prejudgment interest, “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney,” whenever the court finds that the losing party or its attorney “knew or should have known” that a claim or defense, when initially presented or at any time before trial, “[w]as not supported by the material facts necessary to establish the claim or defense” or “[w]ould not be supported by the application of then-existing law to those material facts.” Fla. Stat. § 57.105(1). The statute separately authorizes sanctions for litigation conduct “taken primarily for the purpose of unreasonable delay.” § 57.105(2).

This applies to:

• Any claim or defense;
• Made at any stage of civil litigation or related activities;
• In which the court determines the losing party or his or her lawyer knew or should have known;
• That said claim or defense lacked any legal or factual merit whatsoever;
• When it was first presented to the court, or at any point prior to trial.

The first of several changes to the statute (made by Florida lawmakers in 1999) was specifically designed to “reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available.” Wendy’s of N.E. Florida, Inc., v. Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003). Another change, made three years later, created a “safe harbor” provision. This affords someone who has made a frivolous claim or defense one last chance to withdraw it.

The 21-Day Safe Harbor: How a § 57.105 Motion Actually Works

Clearly, recovering attorney’s fees under Fla. Stat. §57.105 is crucial for anyone involved in a baseless lawsuit. Due to the seriousness of this penalty, however, several strict rules must be complied with and certain procedural requirements must be met. For that reason, it’s important to hire an attorney that’s familiar with the rule and has utilized it during litigation. As a rule of thumb, your attorney should take the following steps if you believe a frivolous lawsuit has been filed against you:

• First, a “safe harbor” letter is sent to the opposing party (or his/her lawyers). In it, the nature of the frivolous claim(s) are described in detail, along with a demand that the claim(s) be dismissed. A copy of the proposed Motion under Fla. Stat. §57.105 should also be attached to the letter.
• If the opposing party doesn’t comply with the demand for dismissal within 21 days, the actual §57.105 motion is filed with the court.
• The case ensues as it typically would, with each side allowed to conduct discovery, etc.
• Typically, a hearing on the §57.105 motion would only be held after the conclusion of the case, at which point it should be clear whether the claim(s) did, in fact, have merit.

The safe harbor is unforgiving: the motion “must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Fla. Stat. § 57.105(4). Skipping or shortcutting this service-first step is the most common reason otherwise-meritorious sanctions motions fail.

When Sanctions Are Off the Table

The statute protects honest advocacy. Monetary sanctions may not be awarded where the losing position was “presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.” § 57.105(3)(a). And a lawyer who “acted in good faith, based on the representations of his or her client” as to the material facts is personally shielded — the sanction then falls on the client alone. § 57.105(3)(b).

How Courts Set the Amount

When sanctions are warranted, Florida courts calculate the fee using the “lodestar” method adopted in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985): a reasonable number of hours multiplied by a reasonable hourly rate, supported by detailed time records. That is one more reason to involve counsel who documents the defense of a frivolous case meticulously from day one.

Not the Only Tool in the Box

Section 57.105 is Florida’s answer to frivolous litigation specifically, but it is not the only way a business can recover its attorney’s fees. Prevailing-party contract clauses are enforced as written — and under § 57.105(7), a one-sided fee clause becomes reciprocal. Proposals for settlement under Fla. Stat. § 768.79 and Rule 1.442 can shift fees even in good-faith disputes when a party rejects a reasonable offer and does worse at trial. One practice note on that front: Rule 1.442 was amended effective January 1, 2026 — a proposal must now expressly state whether it includes attorney’s fees and whether fees are part of the legal claim — so proposals recycled from older forms should be re-checked against the current rule. Each of these tools deserves (and will get) its own article; for now, know that a business litigation attorney should evaluate every fee-recovery angle at the outset of your case, not the end.

As accomplished Fort Lauderdale attorneys, we are legally obligated to act in your best interests when you hire our firm. That means you can count on us to ensure that no one takes advantage of you in any way. If you have any reason to suspect that someone has filed a baseless lawsuit against you, or have a question about any of our other services, time is of the essence. Contact our legal team.

To learn more or speak with a knowledgeable Florida Business Attorney, contact Capital Partners Law today:

• Toll-free at (833) 7-CAPLAW
• Complete a New Client Intake Form (No obligation – an attorney will review your information and contact you to discuss your needs).
• Schedule a Free Consultation

This article is provided by Capital Partners Law for informational purposes only. It is not intended as legal advice and does not form the basis for an attorney-client relationship. If you need legal advice, please contact Capital Partners Law or another licensed attorney.

Related practice area: Business Law — Capital Partners Law