The Right to Be Fee

“Well can’t we at least get them to pay my attorneys’ fees?”

This question — asked by so many people who have found themselves embroiled in a lawsuit not of their own making — is usually the saddest one a commercial litigator has to answer because in the US the answer is almost always no. And while the US Supreme Court has just agreed to take up the question of when in certain kinds of cases exceptions to the so-called “American Rule” on attorney fees may be justified that answer is not likely to change for most litigants.

The American legal system bears more resemblances to its ancestral British forbear than it does to any other. But mostUSjurisdictions rejected the rule in British law requiring the losing party in litigation to pay the legal expenses of the winner. Under the American Rule each party bears the burden of his own legal fees — win lose or more commonly settle.

Scholars debate whether the American Rule or the “English Rule” is better policy. Intuitively it would seem that fewer frivolous lawsuits would be filed if the loser had to pay the winner’s legal costs and that the result would be more just. But this is not necessarily the case.