Attorney Fees: Who Pays if You Win a Lawsuit?

Legal disputes are expensive, and attorney fees are a major concern for anyone involved in a lawsuit. In most cases in the United States, each party pays its own attorney’s fees, even if it wins. However, there are specific exceptions to this rule depending on the type of case and the applicable law.

If you have additional questions about who pays if you win a lawsuit, consult a local lawyer who practices general litigation.

The American Rule for Attorney Fees

Under the American Rule, each party is typically responsible for its own attorney’s fees, regardless of who wins the case. This differs from the English Rule, under which the loser pays.

The rationale behind the American Rule is that everyone with a legal issue should have a day in court. If someone faces the risk of paying not only their own attorney fees but also those of the opposing party, they may be discouraged from filing a claim.

Recovery of court costs, including filing fees, depends on the applicable court rules, statutes, contracts, or judgment. But there are numerous exceptions to the general rules.

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Exceptions to the American Rule for Attorney Fees

There are numerous exceptions to the American Rule, when the winning party may be entitled to seek recovery, including:

• By operation of law. Certain state or federal fee-shifting laws require the losing party to pay the prevailing party’s legal fees, typically in specified civil rights cases, consumer protection lawsuits, or certain labor disputes.
• Contractual agreements. If a pre-existing contract or lease contains a fee-shifting provision that entitles the prevailing party to recover legal fees, the court will enforce it.
• Bad faith or frivolous litigation. In cases of bad faith or frivolous litigation, the judge can punish the losing side and issue a court order requiring it to pay the prevailing party’s legal costs, including attorney’s fees. Courts want to discourage a party from bringing lawsuits that have no merit.

Variations by State

In addition to the exceptions discussed above, some states have unique state laws designed to discourage people from filing frivolous lawsuits or protect consumers. Here are a few examples:

• Alaska generally follows the rule that the losing party must pay a portion of the winning party’s attorney’s fees
• Texas law may allow recovery of attorney’s fees in some successful breach-of-contract actions, even without a contractual fee-shifting clause. You can ask the judge to make them pay the fees for your lawyer
• California, known for its strong consumer protection laws, has statutes that allow prevailing parties to recover attorney’s fees in certain consumer and civil cases. Whether this applies depends on the specific claim

The Type of Claim Affects Attorney Fees

In addition to variations based on state law and the statutes involved, the type of lawsuit you file often impacts how attorney fees are handled. Many common legal disputes follow a predictable pattern when it comes to handling the payment of lawyer fees.

For example, if you get hurt in a car accident or a slip-and-fall case, you usually hire a personal injury attorney on a contingency fee basis. Under this type of fee agreement, instead of paying your lawyer upfront, they simply take attorney fees out of any compensation you win from your case.

Many federal employment discrimination cases allow you to recover attorney’s fees if you win. If you hire a lawyer for legal services in your employment discrimination case, the court may order your employer to pay your reasonable attorney’s fees if you prevail in a legal action.

Collecting After Winning a Lawsuit

After winning, the case is not always over. Actually collecting on the judgment and any legal fees can be another battle. There are often additional steps required before you collect:

• The court may need to enter a judgment
• Any fee award may require a separate motion
• The losing party may appeal, delaying any payment
• Collection efforts may require garnishment, liens, levies, or judgment-debtor discovery
• Collectability depends on whether the losing party has assets

The losing party may delay paying, disappear, or simply refuse to pay. You may require additional legal help for debt collection. An experienced attorney can help with your efforts to collect the attorney fees you’re owed.

Tips for Managing Attorney Fees

Because most lawsuits in the U.S. require you to pay your own attorney fees, you should understand the potential costs from the start. Common fee agreements include hourly, contingency, and flat fee. The initial attorney consultation is when you should clarify fees.

To help control court costs and legal fees, stay in close communication with your attorney and consider the advantage of alternative dispute resolution or settlement in your overall legal strategy.

If you cannot afford an attorney, you may be able to find legal aid from a legal clinic at a local law school or a local bar association. They often provide free legal information and offer legal services for cases such as family law or landlord-tenant law.

Get Legal Help from an Attorney

Visit the Super Lawyers directory to find a local lawyer experienced in general litigation. They can provide legal advice and answer questions about how attorneys are paid in different cases and how you can go about collecting on a judgment if you win a case.