Hawaii: Case Costs vs. Attorney Fees, Explained

Two deductions, two very different purposes — and Hawaii's own ethics rule actually spells out how the two are supposed to interact.

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.

Hawaii's own rule addresses the interaction directly

Hawaii Rule of Professional Conduct 1.5(d) doesn't leave this to chance: it specifically requires the written fee agreement to state what litigation expenses will be deducted from the recovery, and whether those expenses are deducted before or after the contingent fee itself is calculated. Few states' ethics rules spell out this specific mechanical detail as explicitly.

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 — which is exactly why Hawaii's rule requires it to be specified up front.

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, should be addressed in the same written agreement.

Case costs vs. attorney fees — frequently asked questions

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

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 Hawaii 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 Hawaii's own fee rule address how costs and fees interact?

Yes, directly. Hawaii Rule of Professional Conduct 1.5(d) requires the written fee agreement to state what expenses are deducted from the recovery and specifically whether they're deducted before or after the contingent fee is calculated.

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 Hawaii 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 Hawaii Rule of Professional Conduct 1.5, verified per our methodology. Confirm the exact terms of a specific fee agreement with a licensed Hawaii attorney before acting.