Delaware: Case Costs vs. Attorney Fees, Explained

Two deductions, two very different purposes — worth untangling before you assume either number tells the whole story.

The attorney's fee: compensation for the work

The contingency fee is the attorney's own compensation for handling the case — calculated as a percentage of the settlement or award. It's earnings, not a reimbursement, and it's what the attorney keeps for taking on the risk and the work of the case.

Case costs: real expenses the case required

Case costs are something entirely different: actual out-of-pocket expenses the case genuinely needed. This typically includes expert witness fees, court filing fees, the cost of obtaining medical records, deposition transcripts, and similar litigation expenses. These are reimbursed, not earned.

Delaware's fee cap applies to the damages, not the net

Under 18 Del. C. § 6865, the statutory fee schedule in a medical malpractice case is calculated against the damages awarded. Case costs and disbursements are a separate deduction from the capped fee itself — which is exactly why confirming the precise order in a written fee agreement matters, rather than assuming one approach or the other.

Why the order genuinely matters

Calculating the attorney's fee as a percentage of the full settlement before subtracting case costs produces a different net result than calculating the fee after costs have already been subtracted. On a meaningful settlement with real litigation costs, that difference in methodology can add up to a real dollar amount — worth confirming explicitly in the written fee agreement rather than assuming either approach.

Who fronts the money while the case is pending

Commonly, the attorney's office advances case costs as the litigation proceeds, with reimbursement coming out of the eventual settlement or award. The specific arrangement, including what happens to those advanced costs if the case doesn't result in any recovery, depends entirely on the individual fee agreement.

Case costs vs. attorney fees — frequently asked questions

What's the real difference between case costs and an attorney's fee in Delaware?

The fee is the attorney's own compensation for handling the case, calculated as a percentage of the recovery. Case costs are actual out-of-pocket expenses the case required — they're reimbursed, not earned.

What typically counts as a case cost in a Delaware personal injury claim?

Expert witness fees, court filing fees, the cost of obtaining medical records, deposition transcripts, and similar litigation expenses the attorney's office pays on the client's behalf while the case is pending.

Does Delaware's medical malpractice fee cap apply before or after case costs are deducted?

The statutory schedule applies to the damages awarded; case costs and disbursements are a separate deduction from the fee itself, so confirming the exact order in a specific fee agreement matters.

Why does the order of deduction - fee first or costs first - matter?

Deducting the fee from the full settlement before subtracting costs produces a different net amount than calculating the fee after costs are already subtracted, so the order matters and should be spelled out clearly in the fee agreement.

Who fronts case costs while a Delaware personal injury case is ongoing?

Commonly, the attorney's office advances these costs during the case, with reimbursement coming out of the eventual settlement or award — though the specific arrangement depends on the individual fee agreement.

This page provides general guidance only and is not legal advice. Figures are based on 18 Del. C. § 6865, verified per our methodology. Confirm the exact terms of a specific fee agreement with a licensed Delaware attorney before acting.