Can I Make My Opponent Pay My Legal Fees?

Another question that is asked all the time is: Can I make my opponent pay my legal fees? 

In general, the answer is no. We follow the so-called American Rule in this country. Each party is responsible for his/her own costs and fees. There are exceptions when contracts or statutes that are pertinent to the controversy provide for shifting of costs and fees. Apartment leases, as an example, typically recite that if the landlord must pursue the tenant for the rent, the tenant will also be chargeable for the attendant costs and fees. Many of the statutes which govern discrimination in the workplace also make allowance for fee-shifting.

There are some who assume that because a fee-shifting agreement or statute is available, their own attorney will have no recourse against them but only against their opponent. It does not work that way, however, unless the attorney agrees to look solely to the opposition for compensation. 

Prudent counsel will make it clear early on that the obligation to compensate the attorney is on the client, not on the client's opponent; that the attorney will look to the client for that compensation; and that the client may, in  turn, invoke the fee-shifting to pursue reimbursement from the opposition. 

Do I Need a Lawyer?

One of the questions we are frequently asked is: Do I need a lawyer? An individual is free to represent himself or herself as to any legal matter, whether it is a business transaction, initiating a lawsuit, defending a lawsuit, or what have you.

Business organizations are not nearly as free on that score. As a rule they must, by law, be represented by attorneys. Some exceptions apply in certain small claims cases. Smalls claims court in Illinois is limited to cases that seek money only, and not more than $10,000.00.

Having said that, there are any number of situations in which it makes sense for an individual to be represented by an attorney even though the law does not require it. One sort of situation in which this would be true is the situation which entails an attorney representing the opponent, so that it makes sense to engage legal counsel in order to "level the playing field" and avoid a mis-match. An arrangement of that sort makes more and more sense as the stakes of the case increase.

We were recently informed about a case that arose out of a home remodeling project that went awry. The homeowners had spent lavishly on a purely elective improvement to their house but they saw no value in engaging an attorney to help them at the contract formation phase of the transaction. The problem surfaced when the project was nearly complete. The amount at stake, only a few thousand dollars, was far too small to justify a legal fee. But the contractor had an attorney. The attorney had submitted what was, in fact, a modification of the construction contract, five dense, single-space pages that called for further construction work on the part of the contractor. The homeowner airily misdescribed this document as a mutual release, as if to say that anyone with a license to practice law could tell in two minutes whether the document was sufficient for the task.

The upshot: There was not enough money involved to warrant paying an attorney but there was too much work in prospect on the part of the attorney to justify giving a "freebie" to a stranger who had tens of thousands of dollars available to improve the house but no budget at all for legal work.