Attorney Fees in Georgia: Statutes, Calculation, and Requests

Georgia follows the American Rule, so each side in a lawsuit usually pays its own lawyer. Attorney fees in Georgia shift to the other party only when a specific statute, contract, or rule allows it. The main routes are bad faith or stubborn litigation under O.C.G.A. 13-6-11, frivolous claims and defenses under O.C.G.A. 9-15-14, rejected settlement offers in tort cases under O.C.G.A. 9-11-68, and contract clauses on notes and other debts governed by O.C.G.A. 13-1-11. Federal claims heard in Georgia courts can add another layer through 42 U.S.C. § 1988.

Bad Faith and Stubborn Litigation (O.C.G.A. 13-6-11)

This is the statute Georgia plaintiffs reach for most often. It lets a plaintiff recover litigation expenses when the defendant acted in bad faith, was stubbornly litigious, or caused unnecessary trouble and expense.¹

Three details trip people up. First, only plaintiffs can use it, and the complaint must specially plead the fee request and pray for it. A defendant cannot recover under 13-6-11 no matter how the plaintiff behaved. Second, the bad faith has to relate to the underlying transaction that gave rise to the suit, not conduct during the litigation itself. A defendant who honestly disputes a debt and loses at trial does not owe fees simply for putting up a fight.¹ Third, in a jury trial the jury decides both whether fees are warranted and how much, so the plaintiff needs proof of bad faith that plays to jurors, not just legal argument.

Frivolous Claims and Defenses (O.C.G.A. 9-15-14)

Where 13-6-11 looks at the underlying deal, 9-15-14 targets misconduct in the lawsuit itself. It has two subsections, and the difference matters.

Subsection (a) is mandatory. If a claim, defense, or position is so completely without legal or factual basis that no reasonable person could believe a court would accept it, the court must award fees. Appellate courts review those awards for “any evidence” supporting them.²

Subsection (b) is discretionary. It reaches positions that “lacked substantial justification” — substantially frivolous, groundless, or vexatious — and it also covers unnecessarily expanding proceedings through discovery abuse and similar tactics. Reversal on appeal requires an abuse of discretion.²

Either side can use 9-15-14. Fees can be assessed against the offending party, the attorney personally, or split between them, which gives the statute real bite. A motion under 9-15-14 must be filed no later than 45 days after final disposition of the case, and missing that window ends the claim.²

Rejected Settlement Offers in Tort Cases (O.C.G.A. 9-11-68)

Georgia’s offer-of-settlement statute is a fee-shifting tool many litigants overlook until it is used against them. Either side can serve a written settlement offer. If the offer is rejected and the final judgment falls on the wrong side of a percentage threshold, the rejecting party owes attorney fees from the date of rejection through judgment.

If a defendant’s offer is rejected and the final judgment is zero or less than 75 percent of the offer, the defendant recovers fees.³
If a plaintiff’s offer is rejected and the final judgment exceeds 125 percent of the offer, the plaintiff recovers fees.³

The offer must be served more than 30 days after the complaint and at least 30 days before trial. It has to be in writing, identify the parties and claims, state a total amount, and go out by certified mail or statutory overnight delivery. An offer not accepted or withdrawn within 30 days is treated as rejected.³

One important boundary: 9-11-68 applies only to tort claims. Contract disputes, family law, and other non-tort actions are outside its reach. In personal injury and medical malpractice cases, though, a well-timed offer can shift substantial legal costs.

Contractual Fees on Notes and Other Debts (O.C.G.A. 13-1-11)

Loan agreements, promissory notes, and similar contracts often require the borrower to pay attorney fees if the lender has to sue. O.C.G.A. 13-1-11 governs those clauses and caps what the creditor can collect.

If the contract sets a percentage, it is enforceable up to 15 percent of principal and interest owed. If the contract just says “reasonable attorney fees,” the statute fills in the number: 15 percent of the first $500 in principal and interest, and 10 percent of anything above $500.⁴

Before the clause can be enforced, the creditor or its attorney must send written notice after the debt matures, warning that attorney fees will be sought. The debtor has ten days to pay principal and interest in full. Paying within that window voids the attorney fee obligation entirely. Refusing delivery of the notice counts the same as receiving it.⁴

When the statutory formula would exceed $20,000, the debtor can petition the court to review reasonableness. The creditor then must submit an affidavit supporting the request, and the court can hold a hearing or decide on the papers.⁴

Federal Claims Heard in Georgia

Georgia cases that include federal claims can trigger fee-shifting rules that operate independently of state law. The most common is 42 U.S.C. § 1988, which authorizes fee awards to the prevailing party in civil rights actions, including Section 1983 claims, employment discrimination cases, Title IX, and RFRA claims.⁵

The statute is symmetrical on paper but asymmetric in practice. A prevailing plaintiff gets fees as a matter of course. A prevailing defendant gets fees only if the plaintiff’s case was frivolous, unreasonable, or without foundation.⁵ If a lawsuit mixes state and federal claims, fees are evaluated separately under each source, so a § 1988 award does not automatically extend to the state-law claims.

How Courts Calculate the Amount

Once fees are on the table, the court still has to fix the number. Georgia courts generally apply the lodestar method: hours reasonably worked times a reasonable hourly rate for the attorney’s skill and the local market, adjusted up or down for complexity, results, and any excessive or duplicative time.

The requesting party carries the burden on both hours and rate, and the attorney affidavit does most of the work. Vague or block-billed entries invite reductions. Rates above what similar attorneys charge locally get trimmed. The 13-6-11 amount is a jury question in a jury trial, which adds unpredictability. Under 9-15-14, the judge sets the amount and it must be “reasonable and necessary.”² Under 9-11-68, recovery is limited to fees incurred between the rejection date and judgment.³

How to Ask for Fees

The procedure depends on the statute, and the deadlines are strict.

Under 9-15-14, the motion must be filed no later than 45 days after final disposition. The motion can also be filed during the case, which is worth considering when the other side is running up costs through discovery abuse or delay.²

Under 13-6-11, the fee claim must be in the original complaint or added by amendment before trial. Because the jury decides the issue, it gets tried with the merits rather than in a post-trial motion.¹

Whichever route you take, the fee motion needs an attorney affidavit detailing the hours worked, tasks performed, hourly rate, and how that rate compares to local customary rates. Conclusory statements will not carry the day. Expect the opposing party to challenge specific entries, and expect a hearing where both sides argue whether particular work was necessary and whether the rates were reasonable.

How to Defend Against a Fee Request

The best defense depends on the statute driving the motion.

Against a 13-6-11 claim, show that you had a legitimate basis for your position in the underlying transaction. Disputing a contract term in good faith, even unsuccessfully, generally defeats bad-faith fees. The plaintiff has to prove more than winning the case; the pre-suit dealings themselves must have been unreasonable or dishonest.¹

Against a 9-15-14 claim, the fight is over whether your litigation position had legal or factual support. Subsection (a) sets an extreme standard: a position no reasonable person could think a court would accept. Subsection (b) is more forgiving but still requires the position to have been substantially frivolous or vexatious. A colorable legal argument, even a losing one, usually defeats the motion.²

You can also always attack the amount. Look for padded hours, tasks unrelated to the claims at issue, excessive staffing, and rates above what local attorneys of comparable experience charge. Courts routinely cut awards when the documentation does not hold up.

Taxes on Fee Awards

Attorney fees you receive as part of a court award or settlement are generally includible in your gross income. The U.S. Supreme Court held in Commissioner v. Banks that when a recovery is income, the full amount counts, including any portion paid to your attorney as a contingency fee.⁶ That can produce a painful tax bill if you are not ready for it.

There is an important exception for civil rights and employment discrimination cases. Federal law provides an above-the-line deduction for attorney fees paid in connection with unlawful discrimination suits and certain whistleblower claims. It appears on Schedule 1 of Form 1040 and reduces adjusted gross income directly, so it works even without itemizing. Without it, a discrimination plaintiff who won $200,000 and paid $80,000 in attorney fees could owe tax on the full $200,000.

Settlements structured as compensation for physical injuries are generally excluded from income entirely under 26 U.S.C. § 104, which takes the attorney fee portion out of the tax problem. Amounts characterized as lost wages, emotional distress without physical injury, or punitive damages remain taxable. How a settlement agreement allocates the payment can make a large difference, and a bad allocation can cost thousands.

1
Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
2
Justia. Georgia Code 9-15-14 – Litigation Costs and Attorney Fees Assessed for Frivolous Actions and Defenses
3
Justia. Georgia Code 9-11-68 – Offers of Settlement
4
Justia. Georgia Code 13-1-11 – Validity and Enforcement of Obligations to Pay Attorney Fees on Notes or Other Evidence of Indebtedness
5
Office of the Law Revision Counsel. 42 U.S. Code 1988 – Proceedings in Vindication of Civil Rights
6
Justia. Commissioner v. Banks – 543 U.S. 426 (2005)