ORS 20.075: Factors Courts Consider for Attorney Fees

ORS 20.075 is the Oregon statute that tells a judge how to evaluate an attorney fee request. It contains two lists: one set of factors for deciding whether to award fees when a statute makes the award discretionary, and a second set that the court adds to the first when calculating how much the award should be. It also limits appellate review to abuse of discretion, which puts most of the weight of the decision on the trial judge.¹

When ORS 20.075 Applies

Oregon follows the American Rule, so a court cannot shift fees to the losing side unless a statute, a contract, or an equitable doctrine authorizes it. ORS 20.075 does not create that authority. It kicks in once the authority exists.

Some fee statutes are mandatory: if the conditions are met, the court must award fees. Others are discretionary. Subsection (1) of ORS 20.075 governs the discretionary decision, and subsection (2) governs the amount of any award, whether the underlying entitlement is mandatory or discretionary. The reasonableness cap in subsection (4) applies to every award: no matter how the factors line up, the fee cannot exceed a reasonable attorney fee.¹

Factors for Deciding Whether to Award Fees

When a statute leaves the decision to the court, ORS 20.075(1) requires the judge to weigh the following:¹

Whether either party acted recklessly, in bad faith, or illegally in the events that led to the lawsuit.
Whether the claims and defenses each side asserted were objectively reasonable.
Whether awarding fees would deter people with meritorious claims from pursuing them in good faith.
Whether awarding fees would deter meritless claims and defenses.
How reasonably and diligently each party and their lawyer behaved during the proceedings.
Whether the parties made genuine efforts to settle before trial.
Any prevailing party fee already awarded under ORS 20.190.
Any other factor the court finds relevant.

The third and fourth factors pull in opposite directions on purpose. The judge has to weigh the risk of chilling legitimate suits against the value of discouraging baseless ones, and the balance usually turns on how objectively supportable the losing party’s position was.

Factors for Calculating the Amount

Once the court has decided fees are appropriate, or when the statute makes them mandatory, ORS 20.075(2) controls the calculation. The court must apply every factor from subsection (1) and add the following:¹

The time and labor required, the novelty and difficulty of the questions involved, and the skill needed to perform the legal service properly.
The likelihood that accepting the case precluded the attorney from taking other employment.
The fee customarily charged in the locality for similar legal services.
The amount involved in the controversy and the results obtained.
Time limitations imposed by the client or the circumstances of the case.
The nature and length of the attorney’s professional relationship with the client.
The experience, reputation, and ability of the attorney performing the services.
Whether the fee is fixed, hourly, or contingent.
Whether the attorney performed the services pro bono, and whether the award will promote access to justice.

The “amount involved and results obtained” factor tends to do heavy work in practice. Hours that look reasonable in isolation can be cut when they are disproportionate to what was recovered or achieved. Above everything, subsection (4) caps the award at a reasonable fee regardless of what the individual factors might otherwise support.¹

Appellate Review Is Abuse of Discretion

ORS 20.075(3) limits appellate courts to an abuse-of-discretion standard when reviewing a fee decision, whether the trial court granted, denied, or adjusted the fees.¹ That standard is narrow. A reviewing court cannot substitute its own judgment; it can reverse only if no reasonable judge could have reached the decision below. In practical terms, the fee record has to be built in front of the trial judge. If the statutory factors are not addressed and supported on that record, they are unlikely to be revisited on appeal.

How the Factors Get in Front of the Court

The factors are only useful if they reach the judge, and Oregon Rule of Civil Procedure 68 sets the mechanics. A party who wants fees has to plead the factual and legal basis for the award in a pleading, typically the complaint or the answer. Entitlement can be alleged before the right has fully accrued, but a fee award is not available without the pleading step.²

After judgment, the prevailing party has 14 days to file a signed, detailed statement of the fees and costs requested and to serve it on every non-defaulting party. That statement should walk through how the ORS 20.075 factors apply. The court has discretion to allow a late filing on terms it considers just, but late filing is not something to plan around.²

The party opposing the fee request has 14 days after service to file specific written objections. General complaints that the fees are too high do not qualify. Objections can be legal (the statute does not authorize fees here) or factual (the hours are inflated, the rate is above market, the work was unnecessary), and they can be supported with affidavits. The party seeking fees then has 7 days to respond. Either side can request a hearing in the caption of its filing; otherwise the court may decide on the papers. If no objection is filed within the 14-day window, the court may award the fees as requested.²

Because appellate review is so deferential, the ORCP 68 papers are where a fee dispute is won or lost. Each ORS 20.075 factor that matters to your side of the case should be addressed on the record, with the evidence attached, before the trial court rules.

1
Oregon State Legislature. Oregon Code 20.075 – Factors to Be Considered by Court in Awarding Attorney Fees
2
Oregon Public Law. ORCP 68 – Pleading, Allowance, and Taxation of Attorney Fees and Costs and Disbursements