Defendants who are sued for breach of contract often take
comfort in the fact that the contract contains a provision that
will award them attorney fees if they prevail in the action. The
more frivolous the action, the more confident a defendant may feel,
as an attorney fees award will seemingly accompany a final
judgment. But if a plaintiff voluntarily dismisses his case before
trial, a defendant may "feel" like a prevailing party,
but has absolutely no right to recover any fees. It may be only
after attorney fees have piled up that a plaintiff is persuaded of
the futility of the case and the necessity of dismissal, yet that
is exactly when attorney fees are not recoverable. In this way, a
defendant is often at the mercy of a plaintiff's last-minute
decision to dismiss a case, and has little assurance of being able
to recoup attorney fees for defending against even the most
frivolous cases. In fact, the more frivolous the case, the more
likely a voluntary dismissal
