Georgia Code Section 13-6-11 lets a plaintiff who wins on the merits recover attorney’s fees and other litigation expenses when the defendant acted in bad faith, was stubbornly litigious, or caused unnecessary trouble and expense. It is a narrow exception to the American rule that each side pays its own lawyer. To use it, you must request the expenses in your complaint, prevail on your underlying claim, and prove at least one of the three statutory grounds.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
Who Can Recover and How to Plead It
The statute reaches contract and tort cases alike. Recovery of litigation expenses is not a freestanding claim; it rides on a successful underlying case. If you lose on the merits, the fee claim goes with it, no matter how badly the defendant behaved.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
Pleading matters. You have to request litigation expenses specifically in the complaint and include a prayer for that relief. Georgia courts treat this as a prerequisite, not a formality. Raise it for the first time later in the case and you risk losing the claim entirely.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
One useful detail: the size of your compensatory award does not control eligibility. Georgia courts have allowed fee recovery even where damages on the underlying claim were only nominal, so long as the plaintiff prevailed and proved one of the three grounds.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Bad Faith
Bad faith under this statute looks only at the defendant’s conduct in the transaction or event that created the cause of action. It does not cover how the defendant behaves once the lawsuit is underway. That distinction trips up plaintiffs who conflate aggressive litigation tactics with the pre-suit dishonesty the statute targets.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Bad faith requires more than poor judgment or negligence. Courts look for a dishonest purpose or conscious wrongdoing: breach of a known duty driven by ill will, absence of honest dealing, or a sinister motive. Common examples include knowingly violating a law meant to protect the plaintiff, fraud in contract negotiations, and deliberate concealment of material facts in a business deal.
Insurance disputes are a familiar setting. An insurer that unreasonably denies or delays payment of a valid claim can face a bad-faith fee claim based on its pre-suit conduct. Whether the conduct crosses the line is a factual question, so juries usually decide it.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
Stubborn Litigiousness
Stubborn litigiousness targets the defendant who forces a trial when there is no real reason to contest the claim. The controlling question is whether a bona fide controversy exists on the defendant’s liability. If a reasonable factual or legal dispute supports the defense, the defendant is entitled to litigate and this ground does not apply.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
Disputing only the amount of damages is not enough to create a bona fide controversy when liability is clear. If the defendant admits fault or the evidence leaves no genuine question about responsibility, dragging the case to trial to argue over dollar figures can qualify. The classic scenario is a defendant who acknowledges the debt or the harm, refuses to pay a reasonable amount, and forces the plaintiff to spend thousands to collect what was never truly in dispute.
A jury decides whether a bona fide controversy existed unless the facts are so one-sided the judge can resolve it as a matter of law. Simply refusing to pay a debt, standing alone, does not automatically make a defendant stubbornly litigious. The defendant may always raise a good-faith defense. The line falls where the defense stops being good-faith and becomes obstruction.
Unnecessary Trouble and Expense
The third ground reaches situations where the defendant’s actions forced the plaintiff to absorb avoidable costs. It does not require the dishonesty needed for bad faith, but it does require more than the ordinary friction of any lawsuit. Every case has some trouble and expense; the statute targets the excess the defendant’s behavior created.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Typical examples include forcing suit when there is essentially no legal reason to contest the claim, or taking deliberate steps that complicate the proceedings and inflate the plaintiff’s costs. This ground overlaps with stubborn litigiousness but stands on its own when the defendant’s conduct produced genuinely excessive and avoidable costs, even if a bona fide controversy technically existed on some issue.
Timing matters across all three grounds. Bad faith is confined to pre-suit conduct. Stubborn litigiousness inherently involves litigation-phase behavior. Unnecessary trouble and expense can reach both periods. The safest approach is to identify specific defendant actions, tie each to one of the three grounds, and be precise about when each occurred.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Counterclaimants Count as Plaintiffs
The statute’s text refers only to the “plaintiff,” which long limited recovery to the party who filed suit. That changed with SRM Group v. Travelers Property Casualty Co. of America (2020), in which the Georgia Supreme Court held that a defendant who asserts a counterclaim can also seek litigation expenses under this section. When you file a counterclaim, you occupy a plaintiff’s position on that claim, and if the opposing party’s conduct in the underlying transaction meets one of the three grounds, you can recover fees on the same terms.1Justia. Georgia Code 13-6-11 – Recovery of Expenses of Litigation Generally
A defendant who only defends, without asserting any affirmative claim, cannot use this statute. It is not a general tool for punishing aggressive plaintiffs. For that, look to OCGA 9-15-14.
Proving the Amount of Fees
Qualifying on one of the three grounds gets you in the door. You still have to prove the fees were reasonable and necessary, and Georgia courts treat that as a separate evidentiary question. Awards have been overturned when plaintiffs showed up without adequate documentation.
Expect to present detailed billing records showing how attorney time was spent, opinion testimony on the reasonableness of the fees charged (your own attorney can provide it, subject to cross-examination), and evidence of the attorney’s rate, experience, and the complexity of the case. Courts have rejected awards based on guesswork where no billing records or comparable documentation supported the figures. A contingency fee agreement can serve as evidence of the value of legal services, but on its own it may not satisfy the reasonableness requirement.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Because litigation expenses under this section are damages rather than a sanction, the finder of fact sets the amount: the jury in a jury trial, the judge in a bench trial.2Justia. Georgia Code 13-6-11 (2020) – Recovery of Expenses of Litigation Generally
Stacking With Georgia’s Offer of Settlement Statute
Georgia has a separate fee-shifting mechanism under OCGA 9-11-68. If a plaintiff makes a settlement offer that the defendant rejects and the plaintiff ultimately wins a judgment exceeding 125 percent of that offer, the plaintiff can recover attorney’s fees incurred from the rejection date through judgment. The rule runs both ways: a defendant whose rejected offer is followed by a judgment of zero or less than 75 percent of the offer can recover fees.3Justia. Georgia Code 9-11-68 – Offers of Settlement
In Junior v. Graham (2022), the Georgia Supreme Court held that a plaintiff can collect under both OCGA 13-6-11 and OCGA 9-11-68 without any set-off. The statutes target different conduct: fees under 13-6-11 are compensatory damages tied to the defendant’s behavior in the underlying transaction, while fees under 9-11-68 are a sanction for rejecting a reasonable settlement offer. A defendant who acted in bad faith before suit and then rejected a reasonable offer during suit can end up paying the plaintiff’s attorney’s fees twice, under two different theories.3Justia. Georgia Code 9-11-68 – Offers of Settlement
How This Differs From OCGA 9-15-14
OCGA 13-6-11 and OCGA 9-15-14 both authorize fee awards in Georgia, but they do different work. Section 13-6-11 provides compensatory damages to a prevailing plaintiff or counterclaimant based on the defendant’s pre-suit conduct or bad-faith litigation posture. Section 9-15-14 targets frivolous claims and defenses, allowing the court to award fees against any party or attorney who takes a position lacking substantial justification or interposed for delay or harassment.4Justia. Georgia Code 9-15-14 – Litigation Costs and Attorney Fees
The practical difference matters most to defendants. A defendant facing a baseless lawsuit cannot use 13-6-11 to recoup defense costs without filing a counterclaim. Section 9-15-14 is available to any party and is decided by the judge rather than the jury.
Taxes on What You Collect
Tax treatment of a fee award tracks the underlying claim. When the overall recovery is included in gross income, the attorney fee portion is also included. Federal law allows an above-the-line deduction for attorney fees paid in connection with certain claims, including unlawful discrimination and claims against the federal government, but the deduction cannot exceed the amount of the judgment or settlement included in income for that year.5Internal Revenue Service. Publication 525, Taxable and Nontaxable Income
Physical injury recoveries are generally excluded from gross income, and the associated fee award follows the same treatment. For other taxable recoveries, you can owe taxes on the full judgment amount even though a portion went to your attorney. Talk to a tax professional before settling or going to trial so the bill at filing time does not come as a surprise.