ORS Chapter 20
Chapter 20 — AttorneyFees; Costs and Disbursements
2009 EDITION
ATTORNEYFEES; COSTS AND DISBURSEMENTS
PROCEDUREIN CIVIL PROCEEDINGS
ATTORNEYFEES; EXPERT WITNESS FEES
20.075 Factorsto be considered by court in awarding attorney fees; limitation on appellatereview of attorney fee award
20.077 Determinationof prevailing party; cases in which more than one claim made; prevailing partyon appeal
20.080 Attorneyfees for certain small tort claims
20.082 Attorneyfees for small contract claims
20.083 Awardof attorney fees under void contract, under unenforceable contract or to personwho is not party to contract
20.085 Costsand attorney fees in inverse condemnation proceedings
20.094 Attorneyfees in actions or suits in which discharge in bankruptcy asserted
20.096 Reciprocityof attorney fees and costs in proceedings to enforce contract
20.097 Attorneyfees and costs where defendant prevails in certain proceedings to enforcecontract
20.098 Attorneyfees and compensation of expert witnesses in certain proceedings for breach ofwarranty
20.105 Attorneyfees where party disobeys court order or asserts claim, defense or ground forappeal without objectively reasonable basis
20.107 Attorneyand expert witness fees and other costs on claim of unlawful discrimination;defense
OTHERCOSTS
20.115 Serviceexpenses recoverable as costs and disbursements
20.120 Costson review of decision of officer, tribunal, or court of inferior jurisdiction
20.125 Assessmentof costs and attorney fees against attorney causing mistrial
20.130 Proceedingto which state or public corporation is party
20.140 Stateand certain public corporations not required to advance costs; payment of costsrecovered
20.150 Recoveryof costs and disbursements when party represented by another
20.180 Effectof tender as to costs
PREVAILINGPARTY FEES
20.190 Prevailingparty fees
APPEALSON ATTORNEY FEES AND OTHER COSTS
20.220 Appealon attorney fees and costs; effect of reversal or modification
COSTSAND DISBURSEMENTS IN APPELLATE COURTS
20.310 Costsand disbursements in Supreme Court or Court of Appeals
20.320 Statementof costs and disbursements; objections
20.330 Costsand disbursements in cases of original jurisdiction
CONTINGENTFEE AGREEMENTS
20.340 Contingentfee agreement
20.010 [Repealed by1981 c.898 §53]
20.015 [1983 c.527 §3;repealed by 2001 c.417 §5]
20.020 [Repealed by1981 c.898 §53]
20.030 [Repealed by1979 c.284 §199]
20.040 [Amended by1979 c.284 §59; repealed by 1981 c.898 §53]
20.050 [Repealed by1981 c.898 §53]
20.055 [1967 c.359 §703a;repealed by 1981 c.898 §53]
20.060 [Repealed by1981 c.898 §53]
20.070 [Amended by1977 c.544 §1; repealed by 1981 c.898 §53]
ATTORNEYFEES; EXPERT WITNESS FEES
20.075Factors to be considered by court in awarding attorney fees; limitation onappellate review of attorney fee award. (1) A court shall consider thefollowing factors in determining whether to award attorney fees in any case inwhich an award of attorney fees is authorized by statute and in which the courthas discretion to decide whether to award attorney fees:
(a)The conduct of the parties in the transactions or occurrences that gave rise tothe litigation, including any conduct of a party that was reckless, willful,malicious, in bad faith or illegal.
(b)The objective reasonableness of the claims and defenses asserted by theparties.
(c)The extent to which an award of an attorney fee in the case would deter othersfrom asserting good faith claims or defenses in similar cases.
(d)The extent to which an award of an attorney fee in the case would deter othersfrom asserting meritless claims and defenses.
(e)The objective reasonableness of the parties and the diligence of the partiesand their attorneys during the proceedings.
(f)The objective reasonableness of the parties and the diligence of the parties inpursuing settlement of the dispute.
(g)The amount that the court has awarded as a prevailing party fee under ORS20.190.
(h)Such other factors as the court may consider appropriate under thecircumstances of the case.
(2)A court shall consider the factors specified in subsection (1) of this sectionin determining the amount of an award of attorney fees in any case in which anaward of attorney fees is authorized or required by statute. In addition, thecourt shall consider the following factors in determining the amount of anaward of attorney fees in those cases:
(a)The time and labor required in the proceeding, the novelty and difficulty ofthe questions involved in the proceeding and the skill needed to properlyperform the legal services.
(b)The likelihood, if apparent to the client, that the acceptance of theparticular employment by the attorney would preclude the attorney from takingother cases.
(c)The fee customarily charged in the locality for similar legal services.
(d)The amount involved in the controversy and the results obtained.
(e)The time limitations imposed by the client or the circumstances of the case.
(f)The nature and length of the attorney’s professional relationship with theclient.
(g)The experience, reputation and ability of the attorney performing the services.
(h)Whether the fee of the attorney is fixed or contingent.
(3)In any appeal from the award or denial of an attorney fee subject to thissection, the court reviewing the award may not modify the decision of the courtin making or denying an award, or the decision of the court as to the amount ofthe award, except upon a finding of an abuse of discretion.
(4)Nothing in this section authorizes the award of an attorney fee in excess of areasonable attorney fee. [1995 c.618 §6; 2001 c.417 §3]
20.077Determination of prevailing party; cases in which more than one claim made; prevailingparty on appeal.(1) In any action or suit in which one or more claims are asserted for which anaward of attorney fees is either authorized or required, the prevailing partyon each claim shall be determined as provided in this section. The provisionsof this section apply to all proceedings in the action or suit, includingarbitration, trial and appeal.
(2)For the purposes of making an award of attorney fees on a claim, the prevailingparty is the party who receives a favorable judgment or arbitration award onthe claim. If more than one claim is made in an action or suit for which anaward of attorney fees is either authorized or required, the court orarbitrator shall:
(a)Identify each party that prevails on a claim for which attorney fees could beawarded;
(b)Decide whether to award attorney fees on claims for which the court orarbitrator is authorized to award attorney fees, and the amount of the award;
(c)Decide the amount of the award of attorney fees on claims for which the courtor arbitrator is required to award attorney fees; and
(d)Enter a judgment that complies with the requirements of ORS 18.038 and 18.042.
(3)Notwithstanding subsection (2) of this section, upon appeal of a judgment in anaction or suit in which one or more claims are asserted for which theprevailing party may receive an award of attorney fees, the appellate court inits discretion may designate as the prevailing party a party who obtains asubstantial modification of the judgment.
(4)This section does not create a claim to an award of attorney fees in any actionor suit in which the court or arbitrator is not otherwise authorized orrequired to make an award of attorney fees by contract or other law. [2001c.417 §1; 2003 c.576 §167]
20.080Attorney fees for certain small tort claims. (1) In any action for damagesfor an injury or wrong to the person or property, or both, of another where theamount pleaded is $7,500 or less, and the plaintiff prevails in the action,there shall be taxed and allowed to the plaintiff, at trial and on appeal, areasonable amount to be fixed by the court as attorney fees for the prosecutionof the action, if the court finds that written demand for the payment of suchclaim was made on the defendant, and on the defendant’s insurer, if known tothe plaintiff, not less than 30 days before the commencement of the action orthe filing of a formal complaint under ORS 46.465, or not more than 30 daysafter the transfer of the action under ORS 46.461. However, no attorney feesshall be allowed to the plaintiff if the court finds that the defendanttendered to the plaintiff, prior to the commencement of the action or thefiling of a formal complaint under ORS 46.465, or not more than 30 days afterthe transfer of the action under ORS 46.461, an amount not less than thedamages awarded to the plaintiff.
(2)If the defendant pleads a counterclaim, not to exceed $7,500, and the defendantprevails in the action, there shall be taxed and allowed to the defendant, attrial and on appeal, a reasonable amount to be fixed by the court as attorneyfees for the prosecution of the counterclaim.
(3)A written demand for the payment of damages under this section must include thefollowing information, if the information is in the plaintiff’s possession orreasonably available to the plaintiff at the time the demand is made:
(a)In an action for an injury or wrong to a person, a copy of medical records andbills for medical treatment adequate to reasonably inform the person receivingthe written demand of the nature and scope of the injury claimed; or
(b)In an action for damage to property, documentation of the repair of theproperty, a written estimate for the repair of the property or a writtenestimate of the difference in the value of the property before the damage andthe value of the property after the damage.
(4)If after making a demand under this section, and before commencing an action, aplaintiff acquires any additional information described in subsection (3) ofthis section that was not provided with the demand, the plaintiff must providethat information to the defendant, and to the defendant’s insurer, if known tothe plaintiff, as soon as possible after the information becomes available tothe plaintiff.
(5)A plaintiff may not recover attorney fees under this section if the plaintiffdoes not comply with the requirements of subsections (3) and (4) of thissection.
(6)The provisions of this section do not apply to any action based on contract. [Amendedby 1955 c.554 §1; 1979 c.525 §1; 1981 c.897 §1; 1981 c.898 §19; 1985 c.342 §7;1985 c.618 §15c; 1997 c.46 §2; 1999 c.947 §1; 2001 c.542 §2; 2009 c.487 §1]
Note: The amendmentsto 20.080 by section 3, chapter 487, Oregon Laws 2009, become operative January1, 2012. See section 4, chapter 487, Oregon Laws 2009. The text that isoperative on and after January 1, 2012, is set forth for the user’sconvenience.
20.080. (1) In anyaction for damages for an injury or wrong to the person or property, or both,of another where the amount pleaded is $10,000 or less, and the plaintiffprevails in the action, there shall be taxed and allowed to the plaintiff, attrial and on appeal, a reasonable amount to be fixed by the court as attorneyfees for the prosecution of the action, if the court finds that written demandfor the payment of such claim was made on the defendant, and on the defendant’sinsurer, if known to the plaintiff, not less than 30 days before thecommencement of the action or the filing of a formal complaint under ORS46.465, or not more than 30 days after the transfer of the action under ORS46.461. However, no attorney fees shall be allowed to the plaintiff if thecourt finds that the defendant tendered to the plaintiff, prior to thecommencement of the action or the filing of a formal complaint under ORS46.465, or not more than 30 days after the transfer of the action under ORS46.461, an amount not less than the damages awarded to the plaintiff.
(2)If the defendant pleads a counterclaim, not to exceed $10,000, and thedefendant prevails in the action, there shall be taxed and allowed to thedefendant, at trial and on appeal, a reasonable amount to be fixed by the courtas attorney fees for the prosecution of the counterclaim.
(3)A written demand for the payment of damages under this section must include thefollowing information, if the information is in the plaintiff’s possession orreasonably available to the plaintiff at the time the demand is made:
(a)In an action for an injury or wrong to a person, a copy of medical records andbills for medical treatment adequate to reasonably inform the person receivingthe written demand of the nature and scope of the injury claimed; or
(b)In an action for damage to property, documentation of the repair of theproperty, a written estimate for the repair of the property or a written estimateof the difference in the value of the property before the damage and the valueof the property after the damage.
(4)If after making a demand under this section, and before commencing an action, aplaintiff acquires any additional information described in subsection (3) ofthis section that was not provided with the demand, the plaintiff must providethat information to the defendant, and to the defendant’s insurer, if known tothe plaintiff, as soon as possible after the information becomes available tothe plaintiff.
(5)A plaintiff may not recover attorney fees under this section if the plaintiffdoes not comply with the requirements of subsections (3) and (4) of thissection.
(6)The provisions of this section do not apply to any action based on contract.
Note: Sections 2 and4, chapter 487, Oregon Laws 2009, provide:
Sec.2.(1) Except as provided in subsection (2) of this section, the amendments to ORS20.080 by section 1 of this 2009 Act apply to all causes of action, whetherarising before, on or after the effective date of this 2009 Act [January 1,2010].
(2)The amendments to ORS 20.080 by section 1 of this 2009 Act do not apply to anaction that was filed before the effective date of this 2009 Act. [2009 c.487 §2]
Sec.4.(1) The amendments to ORS 20.080 by section 3 of this 2009 Act become operativeon January 1, 2012.
(2)Except as provided in subsection (3) of this section, the amendments to ORS20.080 by section 3 of this 2009 Act apply to all causes of action, whetherarising before, on or after January 1, 2012.
(3)The amendments to ORS 20.080 by section 3 of this 2009 Act do not apply to anaction that was filed before January 1, 2012. [2009 c.487 §4]
20.082Attorney fees for small contract claims. (1) As used in this section, “contract”includes:
(a)Express contracts;
(b)Implied contracts; and
(c)Instruments or documents evidencing a debt.
(2)Except as provided in this section, a court shall allow reasonable attorneyfees to the prevailing party on any claim based on contract if:
(a)The amount of the principal together with interest due on the contract at thetime the claim is filed is $10,000 or less; and
(b)The contract does not contain a clause that authorizes or requires the award ofattorney fees.
(3)Attorney fees may not be awarded to a plaintiff under the provisions of thissection unless written demand for payment of the claim was made on thedefendant not less than 20 days before the commencement of the action or thefiling of a formal complaint under ORS 46.465, or not more than 20 days afterthe transfer of the action under ORS 46.461. The failure of a plaintiff to givenotice under the provisions of this subsection does not affect the ability of adefendant to claim attorney fees under the provisions of this section.
(4)Attorney fees may not be awarded to a plaintiff under the provisions of thissection if the court finds that the defendant tendered to the plaintiff, priorto the commencement of the action or the filing of a formal complaint under ORS46.465, or not more than 20 days after the transfer of the action under ORS46.461, an amount not less than the amount awarded to the plaintiff.
(5)The provisions of this section do not apply to:
(a)Contracts for insurance;
(b)Contracts for which another statute authorizes or requires an award of attorneyfees;
(c)Any action for damages for breach of an express or implied warranty in a saleof consumer goods or services that is subject to ORS 20.098; or
(d)Any action against the maker of a dishonored check that is subject to ORS30.701. [2001 c.542 §1; 2005 c.22 §10; 2009 c.487 §5]
Note: Section 6,chapter 487, Oregon Laws 2009, provides:
Sec.6.(1) Except as provided in subsection (2) of this section, the amendments to ORS20.082 by section 5 of this 2009 Act apply to all contracts, whether enteredinto before, on or after the effective date of this 2009 Act [January 1, 2010].
(2)The amendments to ORS 20.082 by section 5 of this 2009 Act do not apply to anyaction on a contract filed before the effective date of this 2009 Act. [2009c.487 §6]
20.083Award of attorney fees under void contract, under unenforceable contract or toperson who is not party to contract. A prevailing party in a civil actionrelating to an express or implied contract is entitled to an award of attorneyfees that is authorized by the terms of the contract or by statute, even thoughthe party prevails by reason of a claim or defense asserting that the contractis in whole or part void, a claim or defense asserting that the contract isunenforceable or a claim or defense asserting that the prevailing party was nota party to the contract. [2003 c.393 §1; 2009 c.285 §1]
Note: Section 3,chapter 285, Oregon Laws 2009, provides:
Sec.3.(1) The amendments to ORS 20.083 and 20.096 by sections 1 and 2 of this 2009Act apply to all contracts, whether entered into before, on or after theeffective date of this 2009 Act [June 16, 2009].
(2)The amendments to ORS 20.083 and 20.096 by sections 1 and 2 of this 2009 Act donot apply to an action on a contract in which a judgment was entered before theeffective date of this 2009 Act. [2009 c.285 §3]
20.085Costs and attorney fees in inverse condemnation proceedings. In a proceedingbrought under section 18, Article I or section 4, Article XI of the OregonConstitution by an owner of property or by a person claiming an interest inproperty, if the owner or other person prevails, the owner or other personshall be entitled to costs and disbursements and reasonable attorney fees at trialand on appeal. [1965 c.484 §1; 1981 c.897 §2; 1995 c.79 §8]
20.090 [Amended by1963 c.247 §1; 1973 c.553 §1; 1981 c.897 §3; repealed by 1997 c.182 §7]
20.094Attorney fees in actions or suits in which discharge in bankruptcy asserted. In any actionor suit on a debt in which the defendant asserts a discharge in bankruptcy as adefense, the court shall award a reasonable