The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.
In a court case, how does one side end up liable for the other side’s attorney fees? If I sue and win, does the other side have to pay my attorney fees?
You can’t just make the loser pay. It takes a contract or a law to make the other side liable for your attorney fees.
This policy on attorney fees is called the “American Rule.” In 1975, the U.S. Supreme Court stated that rule quite simply: “In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser.”
That’s the opposite of the English Rule. In England—and in most other countries—the loser pays the winner’s attorney fees.
The main argument in favor of our American Rule is really an argument against the English Rule: a loser-pays system discourages people from going to court. The American Rule takes the position that having each side pay their own attorney fees, win or lose, is the best way to keep the courthouse door open to all.
As with any good rule, the American Rule has exceptions. Those are when a contract or a law shifts fees to the other side.
Shifting fees by contract is OK because it’s done by agreement. A party may not have been aware of a fee-shifting term, or negotiated over it, but if they signed something that says they’ll pay the other sides attorney fees, they’re bound by it.
Leases, for example, often say the tenant is liable for the landlord’s attorney fees. It’s OK for a contract to shift fees only one way.
Laws and ordinances can also shift attorney fees. That’s usually done to encourage the enforcement of laws designed to protect the public.
Some laws make the other side pay your attorney fees if you win, and prove they violated the law. Awarding fees to the prevailing plaintiff shifts fees one way.
Other laws shift fees either way, by awarding attorney fees to the prevailing party. That imposes the English Rule, where the loser pays the attorney fees, even if they filed the suit.
Illinois divorce law can also make the other side pay attorney fees, but not depending on who wins or loses. Instead, the Marriage and Dissolution of Marriage Act’s attorney fees provision is designed to even the playing field, by removing the advantage a rich spouse has over a poor one.
When one spouse asks for the other to pay their attorney fees, a judge can make the other pay “an amount necessary to enable the petitioning party to participate adequately in the litigation.”
It’s also possible for one party to be ordered to pay the other’s attorney fees as a punishment for doing something frivolous or in bad faith. But sanctions like that are rare, and then only apply to the objectionable part of the case, rather than the whole thing.
When a contract or law does make the other side pay attorney fees, they can only go to attorneys. But lawyers who represent themselves can’t get attorney fees—they’re only for a lawyer they hire.