PDX Construction Law

Understanding the Complexities of Attorney Fee Recovery

2026-02-10T18:50:45Z

Litigation is risky and expensive; it should be avoided if at all possible. Some of that risk and expense can be reduced through the use of attorney fee recovery clauses or statutes. Unfortunately, attorney fee recovery does not entirely eliminate such risk or expense. This post is designed to provide a helpful introductory overview of the attorney fee recovery process, highlighting those risks and expenses that cannot be eliminated. THE DEFAULT RULE: YOU PAY FOR YOUR OWN LAWYER At the outset, I should note that the default rule in all U.S. jurisdictions is that litigants must bear the cost of their own legal representation without reimbursement. Litigants can either represent themselves or retain counsel, but must pay for the costs charged by such counsel themselves. The only way to alter the default rule is by way of a contract or statute, meaning the contract governing your dispute must contain an attorney fee clause or a statute governing one or more of the claims in the dispute must provide for attorney fee recovery. From there, the precise nature and extent of that attorney fee recovery depends on the language of the clause or statute, as well as a number of other factors discussed below. (This is one of the reasons to seek legal guidance during the contracting phase, rather than wait until after something has gone wrong, but that is a topic for another post.) COSTS INHERENT IN ATTORNEY FEE RECOVERY Even with a contract or statute providing a bases to seek recovery of attorney fees, litigants nonetheless cannot eliminate certain costs inherent in the litigation process. Below is a discussion of the most significant categories to consider. Pay first; reimburse later. One of the more common misconceptions is that an attorney fee clause somehow means the other side will be paying your attorney fees along the way. Unfortunately, this is not the case, and represents one of the biggest problems with attorney fee recovery in general. When you hire an attorney to represent you in a case, you must compensate the attorney by the terms of the engagement letter with your attorney. That could be hourly, flat fee, contingency, unit pricing, or other models, but regardless, the obligation to pay your legal fees falls upon the client, not the opposing party. That includes the entire process until either resolution of the case either by settlement or judgment. Expert Costs. The other major problem with attorney fee recovery is that you cannot recover expert costs unless your contract or statute expressly allows such recovery. Many cases will require the use of experts for investigation, evaluation, consultation, preparation, and ultimately trial testimony. The costs of such expert involvement can be substantial, and will typically be heavily weighted towards both the beginning of the case (investigation/evaluation) and the end of the case (preparation/testimony). However, no reimbursement is allowed for such costs as part of an attorney fee recovery, unless your particular attorney fee clause or statute expressly provides for recovery of expert costs. Most do not. Most likely, you will pay for such costs without any hope of offsetting those costs at the end of the case. Note that sometimes the experts have previously charged for fact investigation, which costs frequently can be claimed as part of your damages, but such work frequently ends before litigation begins in earnest. Appeal. Similar to expert costs, appeal costs are not covered unless expressly referenced in your attorney fee clause or statute. The vast majority of cases never get to an appeal, but this is something to be considered when making strategic decisions. If your case goes to appeal, you will frequently bear those costs on your own. Different claims pleaded. Most cases involve more than one technical claim pleaded in the lawsuit. Examples include breach of contract, negligence, quiet title, trespass, etc., and each claim involves slightly different elements to be proven by the evidence in the case. Attorneys commonly endeavor to plead as many possible claims for relief as possible, as a precaution against the possibility of losing one or more of the claims. Pleading only one claim at the outset of the case can be risky because if the evidence ultimately does not support that single claim, you will have lost the entire case. However, pleading multiple claims carries other risks when considering attorney fee recovery, in at least two different respects:

Dilution of fee award. One of the risks is that you may have the right to recover attorney fees on a single claim, meaning you can seek reimbursement for the attorney fees related to that claim, but nonetheless you may not recover the attorney fees related to the other claims for which you have no fee right. Allocating time between such claims is often very difficult. Note that when the attorney time is expended performing work that benefits all claims or multiple claims, recovery is allowed for such time, even when unrelated work is excluded.
Potential offsetting fees. Many perceive attorney fee recovery as an all-or-nothing proposition, meaning the overall “winner” of the case will recover attorney fees and the overall “loser” will recover nothing. Not so. Oregon requires analysis of fee recovery on a claim-by-claim basis. This means there is a “winner” and a “loser” for each claim – not the overall case – and the therefore also a “winner” and a “loser” of the right to recover attorney fees on each claim. If the case involves more than one claim for which attorney fees may be granted, the possibility exists of offsetting fee awards, meaning both sides could recover their attorney fees. When this happens, it has the net effect of negating the attorney fee recovery for the overall case “winner,” which can make a victorious case feel like a net loss.

Your results may vary. Attorney fees are awarded by judges not juries. After the trial is concluded, the attorney(s) prevailing on a claim for which attorney fee recovery is allowed will submit an attorney fee petition. The judge then reviews the petition along with any objections, and will decide the correct amount to be awarded. However, because all attorneys are slightly different in how they staff and manage their cases, the amount of time spent will be viewed differently be each judge. I have been fortunate in my fee petitions, in that most of them have been approved at 100% of the time spent, but I have had a couple instances where judges awarded less than 100% of the fees expended. RISKS INHERENT IN ATTORNEY FEE RECOVERY Recoverability. In the end, the right to recover attorney fees means only that you have the right to have the judge add the amount of your attorney fees to the final judgment in the case. From there, actual recovery of attorney fees depends upon the judgment debtor’s ability to pay the judgment. If your opponent has no money, an attorney fee award may have no benefit in the end. What if you lose? No claim is 100% guaranteed to win. All claims bear a non-zero chance of being unsuccessful. For fee-based claims, that means facing the chance you might owe the other side their attorney fees in the event of a loss. If that happens, not only would you not have recovered your damages, but you would have lost the money you paid your lawyer to fight the case, and to top it off you would need to write a check to the other side to reimburse their attorney fees. Even if the chances are miniscule, the potential loss is large. Raises stakes along the way. In cases where attorney fees could be awarded, where each party believes in the righteousness of their respective cases, they will also believe they can recover their own attorney fees. Therefore, the further into the case the parties get, the larger the demands become when accounting for attorney fees expended. Settlement Difficulties. In addition to the entrenchment problem mentioned above, settlement discussions can become increasingly difficult throughout the case because of the increasing attorney fees expended and the difficulty in predicting exactly how much of the overall expenditure might be recoverable. Some clients believe that settlement discussions concern only the underlying claims, and that the other side will remain obligated for attorney fees after the settlement. Although such an arrangement is possible, nearly all settlement discussions contemplate payment for all claims including attorney fees. Thus, settlement discussions become more difficult along the way merely because calculation of the “net” settlement – the amount recovered after deducting the amount already spent on attorney fees and experts – complicates the discussion. Lawyer Ego. Lawyers are prideful animals by nature. When pleading or answering a fee claim, attorneys are called upon to evaluate the odds of success and the ability to deliver a positive outcome to the client. Once that early analysis is complete, and the lawyers and clients have made litigation and financial decisions based upon that analysis, the lawyer’s personal pride becomes attached to the analysis itself. Adaptation and re-evaluation become more difficult because a changed analysis feels like a concession that the initial analysis was somehow flawed. Lawyers are human, and some humans are more capable of adaptation than others. Prosecuting or defending a fee claim requires that the lawyers be more willing to set ego aside in favor of evolving analyses, and requires that clients accept such evolving analyses. The problem of “justice.” Rare is the perfect case. Lawyers are needed because cases are imperfect. That being said, even in the perfect case, litigation will hurt. For all of the above reasons and more, there are very few scenarios where a litigant will come out 100% unscathed. This is a flaw in the legal system itself, well beyond the scope of this post, but clients should nonetheless be aware of this inherent flaw in our system. HOW BEST TO PROCEED Understanding that certain risks and costs cannot be eliminated is only the first step. Litigant and lawyer must analyze the specifics applicable to each case and decide how best to proceed. Every case is different, regardless of whether or not attorney fee recovery might be allowed.

Presentation: Managing Time and Cost Impacts of the Pandemic

2026-02-10T18:50:51Z

In early May, Dean Aldrich gave a presentation to the Design Build Institute of America on Managing Time and Cost Impacts of the Pandemic. This issue is important for ongoing projects, as well as new projects, and conditions and requirements are constantly changing. Give us a call or email if you have questions or want to run any scenarios by us. We can help! Managing the Cost Impacts of the Pandemic Presentation

A primer on the law pertaining to breach of contract

2026-02-10T18:50:58Z

Much of the business world is founded on contracts. These agreements set expectations so that each party knows each other's obligations and responsibilities moving forward. This can provide stability, thereby allowing businesses to operate smoothly for the benefit of their consumers. Although contracts can be enormously helpful, they can often pose a problem, especially when the terms of the agreement are breached. If you are involved in a business dispute stemming from an alleged breach of contract, then you need to know the law so that you can protect your interests as fully as possible. The best way to do this is to understand what actually constitutes breach, then develop legal arguments based on the facts at hand. Although many failures to comply with the terms of a contract constitute material breach, meaning that you receive something other than what you bargained for, minor breaches can occur, too. These may be circumstances where a term wasn't strictly adhered to, but was complied with in the end. An example of a minor breach would be a good being delivered slightly past its due date as identified in the contract. Contracts can also be breached before the transaction memorialized in the document actually occurs. Here, the breaching party simply admits that it will be unable to comply with the terms of the contract. Although the advanced notice can be helpful, the breach can still be damaging to the non-breaching party. You may encounter other issues with contracts, such as whether the terms are ambiguous and whether a verbal promise is legally enforceable as a contract, that can threaten the stability and reputation of your business. If you are dealing with these types of issues, then you should think about whether you need a strong advocate on your side to help you present your side of the case.

Construction companies may be liable for common construction defects

2026-02-10T18:51:03Z

When a property owner hires a construction company to complete renovations to their property, they trust that the company, its employees, and its contractors and subcontractors will adhere to industry standards as well as abide by the terms of the work contract. In some cases, the construction company fails to properly complete the work it was hired to do and as a result, there is damage to the property. Due to these construction defects, property owner may have to hire and pay a new company to fix the damage caused by the original workers. There are many possible defects that can be created during the construction process, including design deficiencies, material deficiencies, poor workmanship, and maintenance deficiencies. Design deficiencies occur when the engineers or architects on the project come up with a poor building or roof designs. Material deficiencies are typically caused by the use of an unsuitable or faulty building materials, resulting in improper installation. Poor workmanship, or construction deficiencies, refers to the lack of quality work completed by the company, while maintenance deficiencies refer to failing to ensure that the building continues to operate properly. Any deficiencies during the construction and renovation process can result in a number of problems, including mold growth, water intrusion, faulty electrical wiring, and lack of building stability. Property owners dealing with construction defects may file a claim to recover damages. An attorney specializing in construction defects can assist you with filing a claim against a construction company that performed inadequate work on your property.

Boundary disputes can be resolved legally

2026-02-10T18:51:09Z

Buying a new piece of land can be exciting, and once you find land to purchase, you want to make sure you have the option to use every inch of the property you paid for. As a result, you may decide to build a fence around your property to show everyone what’s yours. However, your neighbors may put a stop to your plan if they disagree with you on the boundaries of your property. The good news is that almost any property dispute can be resolved with the help of an attorney specializing in real estate law. There are many options for dealing with a land/property boundary dispute. While you may have done a survey on your property when you first purchased your property, you may want to do a more current one to find out exactly where the boundaries are before building your fence. However, if the property deed is too old, these boundaries may be difficult, if not impossible to determine. In such cases, you as the property owner can file a quiet title lawsuit for the judge to determine where the lines are. You may also be able to work out an agreement with the owners of the property surrounding your property, where everyone agrees to a fence and each property owner would sign a quitclaim deed granting the other owners ownership of the land beyond the agreed-upon boundaries. Finally, if a property has been used by a non-property owner for a certain amount of time and the possession was a hostile claim, in which a trespasser had exclusive, continuous, open, and notorious possession of the property, without permission from the owner, the non-property owner may have adversely possessed the property. In such cases, the trespasser may be legally allowed to continue to stay on the land. If you are involved in a property boundary dispute, an Oregon attorney in your area can advise you on next steps.

Common types of construction disputes

2026-02-10T18:51:15Z

There are many construction projects occurring in the Portland area every day. These projects include the construction of large office or apartment buildings, new homes, major renovations and small residential projects. There is a process to all of these projects regardless of type or size of the project. Obviously larger projects are more complex and involve many subcontractors of various disciplines, which can lead to more construction disputes, but there can be disputes that arise in smaller residential projects as well. There are many different types of disputes that can arise as well, but some are more common than others. One common dispute is over the specifications and scope of the work. Interpretations of the work to be performed can vary between various parties. These types of disputes can arise between a contractor and the owner and also occur between contractors and subcontractors. Another common type of dispute is over construction defects, which usually result because of negligence or a breach of contract claim. Construction projects can be very costly due to the amount of labor required, the types and amount of the materials and equipment needed to complete the project properly and other aspects. If something is done incorrectly the results can significantly increase the costs of the project, which is when disputes arise. These disputes can be very complex and costly as well. However, if successful the negligent party will be required to compensate the other party for the mistakes made and the extra costs incurred as a result. As there are many construction projects each year in the Portland area, there are also many construction disputes as well. Mistakes made by contractors, sub-contractors and others involved in the project can result in additional costs, which can be very detrimental to the person incurring them. However, people or companies that find themselves in this unfortunate position may be able to receive compensation from those at fault. Experienced attorneys understand this complex area of law and may be a useful resource.

The different types of construction defects and legal remedies

2026-02-10T18:51:20Z

Construction defects can be a serious concern for everyone involved in a construction project. As a result, it is helpful for construction companies and property owners alike to be familiar with what they are, what they can do about them and the legal resources to help. There is a lot going during any construction project, and a lot involved in the process. This can create the opportunity for things to go wrong. Construction defects can include deficiencies in the design, planning, supervision, construction, construction observation or inspection phases of the construction of a new building which can include a home or building intended for commercial use. Specific types of construction defects can relate to the structural integrity of the building; water intrusion or soil expansion; thermal and moisture protection; mechanical and electrical components of the building; doors, windows and glass; the building finishes. If the structure fails to perform in a manner reasonably intended by the buyer, or is not constructed in a reasonably workmanlike manner, there may be liability for any construction defects that arise. Construction defects, including design defects, subsurface defects, materials defects and construction defects, can all impact the value of the property as well as the ability of the property owner to use the property as intended. Construction defects can also be a challenge for builders and contractors to contend with during complex construction projects. There are legal protections available to both property owners and builders when construction defects arise to help with the monetary costs of their losses or with repairs, among other types of possible relief. Construction law can quickly become complex so it is valuable for parties impacted by construction defects to be familiar with their options when facing construction defects.

5 signs you’ve hired a reliable contractor

2026-02-10T18:51:26Z

You're constructing a home or business, and now you're forced to deal with the unfortunate experience that proceeds the hiring of an incompetent contractor. Their lack of professionalism and standard leads to property defects and leads you to contemplate litigation. Facing the result of a poorly done job is time-consuming and stressful. A homeowner, business owner, or property owner shouldn't have to manage these kinds of issues. Nonetheless, "fly by night," contractors are all over the place, trying to score quick and easy cash. Jobs can be done quickly and meet a professional standard, but that not the case with some contractors. To avoid this aggravating situation, vet your contractor by ensuring they meet the standards below. Provides all requested information This information could include a written estimate detailing the agreed-upon work, a portfolio highlighting their previous work, licenses, and the required permits and inspections to ensure the project is up to building code. Doesn't require a full payment upfront Though a professional contractor knows his work will meet the standard necessary for payment, asking for a percentage of payment upfront is common in the construction industry. This payment provides the contractor peace of mind that even if something goes awry with the payment source, they received some of the payment for the work they completed. If the contractor asks for full payment before beginning the work, that's a red flag. They are trustworthy A good contractor holds up agreements and meets contractual obligations. They will only use the agreed-upon materials, and if the materials aren't available, the contractor will contact you to suggest a product equal in value before beginning the project. Abides by property rules As a homeowner or business owner, there are specific rules you may want the contractor to follow. A reliable one will do so. They will clean up adequately, respect particular spaces, and follow any other requests you make. They communicate effectively Throughout each stage of the constructing process, you and your contractor should be in contact to ensure the project is meeting expectations. If you don't hear from your contractor for an extensive period, begin to investigate to make sure the contractor isn't trying to complete shoddy work under your nose. Finally, understand that there are individuals in all industries that put on a great show, but fail to produce a worthwhile final product.

Announcing: The hottest neighborhoods in Portland!

2026-02-24T21:29:05Z

Data published by the Regional Multiple Listing Service (RMLS) for this past quarter shows what are the top 25 neighborhoods to reside in here in the Portland area. RMLS statistics show that many homes in these Portland communities that made the list took just under a week to sell during the second quarter of this year. Homes sold a lot quicker in less attractive neighborhoods that didn't make the list this quarter as well. The houses in those communities sold in as little as two weeks. Both Beaverton and Aloha tied for first place as the "Hottest Neighborhoods" in the Portland metro area. This largely had to do with the fact that homes sold on an average of five days in those two Oregon communities. Two neighborhoods, Gresham and Hillsboro/Rockcreek tied for second place. Homes in both of those communities sold, on average, six days after having been placed on the market. Eight neighborhoods tied for third place as the hottest communities in the Portland metro area. The cities that took this spot included Milwaukie, Cully, Clackamas, Beaverton/Aloha, North Tabor/Hollywood, Tigard/Metzger, Northwest (N.W.) Vancouver/Rose Village, Washington, Ladd's Addition/Hawthorne, Oak Grove/Oatfield and Mount (Mt.) Tabor. Homes in those cities remained on the market for as little as seven days. Homes in the communities that made the top 25 list all sold in 10 days or less. The list's creators note that the short listing-to-sales turnaround is indicative of how the real estate market in Portland is more appealing and desirable this year than last. If you've identified a home that you're looking to purchase in the area, and you'd like someone to guide you through the closing process, then an experienced attorney can provide you with the guidance that you need to make sure the appropriate steps are taken.

Beware! Your new Portland home may have construction defects

2026-02-10T18:51:37Z

When you go to purchase a home, a lender will take into consideration how much your home is worth when deciding how much of a mortgage to allow you to take out. When you go to sell a home, your realtor will base the price that they list is at on a variety of factors including the condition of your home. If your home was hastily constructed or was built with inferior building materials, then it may have construction defects. These can devalue your home.

Construction defects can be caused by the use of inferior building materials or poor workmanship as outlined above. They can result from structural and civil engineering problems, site planning or selection issues or inadequate soil preparation and analysis.

Most homeowners end up filing construction defect lawsuits because they find that their home has problems with its electrical, plumbing, or heating and air systems. Other concerns that motivate homeowners to file suit are structural or foundational issues. Water, landscaping and drainage issues tend to be a problem for homeowners. Many homeowners also sue for damage such as dry rot or mold.

If you're successful in suing your contractor for construction defect that results from poor workmanship or the use of inferior materials, then you may be able to recover damages. Some of the costs that you may qualify to get reimbursed for include ones for repairs and any damages you suffered because of its state of disrepair.

It's also possible for you to recover court fees and litigation costs. You may even be able to request a reimbursement of your temporary housing fees.

Proving that some kind of construction defect occurred isn't easy. This is why you should only entrust your case to a construction defects law attorney who has superior experience in trying such complex cases here in Portland and throughout Oregon.