The general rule in Georgia is that each party must pay its own legal fees incurred in litigation. Although Georgia has several statutory “loser pays” rules, the circumstances necessary to recover fees under these statutes are based on many factors, which may or may not be present in any given case. Based on the uncertainty of whether any of these statutes may apply when seeking to enforce an employment contract, consideration should be given to including a “prevailing party” clause in any employment contract. These clauses may better allocate the financial risks of litigation, as well as potentially discourage employees and former employees from pursuing meritless litigation. If drafted correctly, the clause will entitle the prevailing party to recover its fees and expenses as a matter of right and without having to resort to any of the statutory frameworks for recovering fees and expenses in connection with successful litigation.
Drafting the Provision
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