Drafting Prevailing Party Provisions

Here are the six parts of the prevailing party provisions and some thoughts about how to approach them. Keep in mind these are very jurisdiction-specific, so this version may not work everywhere.

1. What kind of proceedings does it cover? Use narrow or broad relational language to adjust the coverage as desired.
2. Is it limited to the agreement or extend to other claims? The first clause includes products, so there may be non-contractual claims.
3. When is a party entitled to these fees? Consider whether you need to define the prevailing party (such as when it is not defined in the jurisdiction).
4. What kind of ruling is required? Here, the right arises after a final, unappealable court ruling or arbitration award. Make to address arbitration specifically.
5. What kind of fees are included? The three categories to look for are attorneys’ fees, court costs, and other incidental fees. You can significantly narrow or broaden this clause with your words here.
6. Does it cover enforcement and collection? Evaluate whether the provision allows for costs of the underlying action only. You may want to clarify that you also are entitled to costs for collection and appeals.