Tuesday, March 26, 2013


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: