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May 22, 2026
Avoiding Waiver When Seeking Attorney Fees
By Elaine D. McCafferty
In an era where attorney fees can quickly eclipse the amount in controversy, litigators inevitably face questions about recovering fees from the opposing party. The American rule generally requires litigants to bear their own attorney fees, but a growing number of contracts, statutes, and common law exceptions may provide for fee shifting.1 In light of this trend, every litigator should understand procedural missteps that can turn a right to attorney fees into an unrecoverable loss.
Preservation at the Pleading Stage
Preserving the right to seek attorney fees starts at the pleading stage. Under Rule 3:25 of the Rules of the Supreme Court of Virginia, litigants must demand fees in an initial filing, such as a complaint or responsive pleading. The rule was recommended by the Boyd-Graves Conference to “improve the procedures for handling attorney-fee claims,” “reduce potential traps for unwary practitioners,” and “require the issue of availability of attorney fees to be addressed early” in litigation.2
To comply with Rule 3:25, a demand for attorney fees must identify the grounds for fee shifting. That means litigants must specify a contractual, statutory, or common law basis for fees in their demand. While many complaints include a general request for attorney fees, courts have rejected such requests as “enforceable boilerplate” when no grounds for fee shifting are provided in the demand.3 Insufficient demands can be remedied through an amended pleading under Rule 3:25(c) and Rule 1:8. If a ground for fee shifting is discovered during the course of litigation, practitioners should promptly seek leave to amend to add a proper demand for fees.
Proving the Reasonableness of Fees in Trial Court
The party seeking fee shifting has the burden of proving the amount and reasonableness of their fees. Expert testimony addressing the reasonableness of fees is generally required in order to satisfy this burden.4 To avoid incurring expert fees before the prevailing party is determined, a party may seek to bifurcate attorney fees from the merits of the underlying action under Rule 3:25(d), which requires courts to establish procedures for adjudicating attorney fee claims upon request.
Trial courts consider several factors when deciding the reasonableness of attorney fees, including “the time and effort expended by the attorney, the nature of the services rendered, the complexity of the services, the value of the services to the client, the results obtained, whether the fees incurred were consistent with those generally charged for similar services, and whether the services were necessary and appropriate.”5 The weighing of these factors is reserved to the sound discretion of trial courts. Absent an abuse of that discretion, appellate courts will not disturb an award of attorney fees.
Seeking Appellate Fees
Pursuant to Rule 1:1A, a party that prevails in both trial and appellate courts may seek attorney fees incurred on appeal if it previously recovered fees in trial court. To seek appellate fees under this rule, the prevailing party must file an application in the circuit court that entered judgment within 30 days of the final appellate judgment. For strategic reasons, parties often forego requests for attorney fees after prevailing in trial court, primarily due to concerns that requests for fee shifting will encourage the opposing party to appeal. This decision forecloses the opportunity to recover appellate fees under Rule 1:1A because it applies only when fee shifting occurred at the trial level.
Rule 5A:30 provides an alternative avenue for seeking appellate fees, however, which does not turn on whether fees were previously recovered in trial court. This rule mirrors Rule 3:25 by permitting fee shifting requests whenever they are authorized by a recognized exception to the American rule. Appellate fee requests under Rule 5A:30 must be raised in an appellate brief and can be awarded by an appellate court or on remand.
In sum, avoiding waiver when seeking attorney fees requires navigating multiple rules at each stage of civil litigation. Litigators should understand these rules and consult appellate counsel when warranted.
Footnotes
Elaine McCafferty is a principal and appellate lawyer at Woods Rogers. She may be reached at [email protected].
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