There seems to be a misunderstanding.
Say you’ve got a burr under your saddle about this or that. Someone has treated you unfairly. Say, like Howard Beale in the film classic “Network,” you’re mad as hell and you’re not going to take it anymore!
Well, alright then.
You march into an attorney’s office, ablaze with righteous brimstone. You plop yourself before the broad acreage of the attorney’s desk, and thunder on with both clenched fists. Someone has done you wrong! You declare.
The attorney asks you for the particulars. Who did what to whom?
You recount the myriad injustices.
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“When did this occur?” the attorney may ask.
You tell him.
“Was there a contract?” He may inquire. Depending on your answer, he may follow with a “Was it written? Do you have a copy?”
Having reached the point of marching to the attorney’s office, pounding two-fistedly on the lawyer’s desk, and spent yourself in the telling of the tale, you will, at last, come around to ask, “Can I sue the (here, fill in your own preferred invective)?”
Say the lawyer nods his head. “You may have a case here,” he may timidly venture. Or, perhaps, with virtuous thunder, and channeling his inner Sarah Palin, he may say, “You Betcha!”
You straighten up. You’re glad you came. Justice will at last be served! You swell up like one of those shiny foil balloons that you can buy at the grocery store that, in rainbow colors says, “Congratulations!” “What about attorney fees?” you ask. “Can I get him to pay what it will cost me to hire you?”
A reality check
You’re pretty sure you hear a slow leak. Helium is seeping inexorably from the throat of the balloon.
“Well…” the lawyer begins. “That may be another story. You see…” and then he begins to explain the difference between the “American Rule” and the “British Rule.”
As a general rule, within the ambit of the British Rule, the loser pays. There seems a sort of symmetry to that. You have proved your point. You won. Why, by all the gods, should the guy you’ve just KO-ed in a court of law not ante up?
Well, jolly good for you.
But across the pond it’s different.
Under the American Rule that governs, well … Americans in, um … America, things are different. A bugger, that!
Speaking generally, unless there is some exception, under American laws, each side bears its own costs of the legal tussle.
There are exceptions
There are, broadly, three exceptions. First, if the matter in dispute involves a contract, if the contract says that the winner gets attorney fees, then bingo! Attorney’s fees it is.
Second, a certain statutory provision may govern. Under certain laws, specific kinds of conduct may entitle the winner to attorney fees.
Sort of a “two-B” rather than an actual “three,” is if one is successful in a lawsuit under certain theories of law, the loser may have to belly up to the bar of repayment to the winner. Other than that …
You are stunned. You may lean forward in your chair, threatening to collapse in a swoon upon the attorney’s nicely polished hardwood floor. “You mean,” you say, “even if I win, he gets off scot-free?”
“Well, if you win, it’s not scot-free. He will have to pay damages. Maybe pre- or post-judgment interest as well. Or maybe both. Under certain theories, you may also be entitled to punitives.”
“But not attorney fees?”
“Sadly, most times, no.”
Where is the justice, you want to know? “But I thought…” you manage to stammer.
“Many people do.”
“Drat,” you say, “what’s fair about that?”
“The thing about this; the American Rule allows people to bring lawsuits without the fear of incurring excessive costs if they lose the case. Under the British Rule, if you thought that you were right but for some reason a judge or jury ruled you weren’t, you’d owe the other side attorney’s fees.”
As I said at the beginning, there seems to be a misunderstanding. So let me correct it here. Most times, under the American system of justice, the winner is not awarded his or her attorney fees. There are exceptions but these are, as the word suggests, exceptions. Usually, each side pays his or her own attorney fees. Right, wrong, or indifferent, that’s just the way it is.
You suddenly have cold feet.
Perhaps the helium has leaked into your socks.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.
