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shifting context to the total costs incurred in defense of the suit as compared with the amount in
controversy and opposing counsel’s conduct. The court noted that in the proceeding before it, the
plaintiff solicited a $500,000 settlement in her final demand, which made the amount expended seem
reasonable. As a result, it seems that the higher a plaintiff aims with claims, the
more money the opposition can expend in legal fees while still remaining
reasonable. Furthermore, the court relied on two of its prior cases for the
assertion that the fact that the prevailing party was willing to pay the fees at a
point in time when victory and reimbursement of the fees were uncertain
weighed strongly in favor of finding that the fees were reasonable. Balcor, 73
F.3d 150, 153 (7th Cir. 1995); Kallman v. Radioshack Corp., 315 F.3d 731, 742
(7th Cir. 2002). Hence, it seems that all attorneys’ fees, save for perhaps
contingency fees and fees the client has refused to pay, will initially be given
great deference as being reasonable because they will have necessarily been agreed upon and paid
at a time when the case was still in controversy and the outcome uncertain.

III. A defeated party’s inability to reimburse the prevailing party for the
attorneys’ fees has no bearing on the reasonableness of the fees.

The inequity that might result from requiring a party to bear what the court acknowledged were
“unquestionably, and unfortunately, very high” fees was irrelevant despite claims that the suit was
made in good faith and that she lacked the capacity to afford to pay the fees. The court stated that if
the fee-shifting provision does not contain language addressing hardship, then courts will not insert
such language absent an inequality of bargaining power. Berthold Types Ltd. v. Adobe Systems,
Inc., 186 F.Supp.2d 834, 837 (N.D. Ill. 2002) (citing Medcom, 200 F.3d at 520; Balcor, 73 F.3d at
153); see, e.g., United States, for the Use of C.J.C., Inc. v. Western States Mech. Contractors, Inc.,
834 F.2d 1533, 1548 (10th Cir. 1987).

IV. The inescapable conclusion is that an abundance of caution is warranted
when dealing with fee-shifting agreements.

In the end, this case demonstrates the extraordinary seriousness with which all parties must take
fee-shifting provisions in any transaction in which they engage. In the above-discussed case, the
unemployed plaintiff, who had been receiving social security disability payments, was
left with over half a million dollars in legal fees as a result of her pursuit of the
unsuccessful cause of action. Thus, the situation clearly can arise where a plaintiff
enters a suit expecting to bear only her own attorneys’ fees or perhaps no fees at all
unless victorious pursuant to a contingency arrangement, but instead ends up
burdened with a seemingly insurmountable debt. Furthermore, this case should serve
as a caveat for those who would seek extraordinary damages when one of these
provisions is present, as the courts will consider the amount sought in determining the
propriety of the fees. It thus behooves one to make reasonable demands when a
possibility exists that the suit will end in failure.

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