THE GRANDADDY OF ALL FAQs

No question is asked of us more frequently than this question: Can I charge my opponent for my legal fees?

In general, the answer is no: Each party bears and pays his or her own litigation expenses, including attorney's fees. This is known as the "American Rule," as distinct from the "English Rule" -- Loser pays. (The "English Rule" drove the playwright Oscar Wilde into bankruptcy following his failed lawsuit for libel against the Marquess of Queensberry.)

There are exceptions to the "American Rule" when the case entails a contract that calls for fee-shifting, such as an apartment lease, or a statute that does so, such as Title VII of the Civil Rights Act.

A bill now pending in the Illinois Senate would permit fee-shifting in favor of defendants who prevail in lawsuits brought against them in small claims court for enforcement of consumer contracts if the complaint prays for an award of fees in favor of the plaintiff and the defendant was not represented by an attorney when the consumer contract was negotiated. (Senate Bill 1901, Consumer Reciprocal Attorney's Fees Act, sponsor: Sen. Daniel Biss, Skokie).

Other examples of contracts that contain fee-shiftings clauses are potentially infinite. One that stands out was used by a general contractor for its subcontracts. It provided that the litigation expense (including attorney's fees) of the general contractor would be borne and paid by a subcontractor who sued and recovered less than 75 percent of the amount claimed due in the initial complaint.

Statutes which contain fee-shifting clauses include:

Illinois Consumer Fraud and Deceptive Business Practices Act

Illinois Wage Payment and Collection Act

Americans with Disabilities Act

Age Discrimination in Employment Act

SENIORITY OR DISABILITY: WHO GETS THE JOB?

by David McCarthy

Query: When an employee with seniority and an employee with a disability vie for the same job, who gets it?

Usually the employee with seniority, according to the U.S. Supreme Court.

In 1990 a man named Barnett injured his back while employed as a cargo handler by U. S. Airways Inc.. He invoked his own seniority rights to gain a less demanding position in the mail room. Two years later his position, among others, was opened to seniority-based employee bidding, and Mr. Barnett learned that two co-workers who were senior to him intended to bid for his positions.

Mr. Barnett proposed to U. S. Airways that it accommodate his disability by exempting his position from the seniority system. Ultimately the employer refused, Mr. Barnett lost his job, and he sued U. S. Airways on the grounds that it had discriminated against him in violation of the Americans With Disabilities Act ("ADA").

Summary judgment for the defendant-employer was reversed on appeal. Then the U. S. Supreme Court, in another 5-4 decision, reversed the Court of Appeals and remanded the case to the trial court.

The Court held that the accommodation requirements of the ADA do not oblige an employer to disregard its own seniority system unless the plaintiff-employee shows "special circumstances" warranting from the seniority system in that particular case.

What does a "special circumstance" look like?

The Court offered only one example, to wit, that of an employer who has so often exercised a unilateral right to make exceptions to its seniority system that one more exception will not matter. It is too soon to tell whether the seniority-is-trump rule will be swallowed up tby the "special circumstances" exception, but it is predictable