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Attorney Fees: Can I Make the Other Side Pay Them?

Attorney fees is the elephant in the room litigants usually do not immediately consider before delving deeper and deeper into litigation. It is quite common that economic circumstances, and not necessary the merits of a given case, determine whether to file/settle/dismiss a case. Would you spend $5,000 in legal fees in order to obtain $100 via a judgment? As one judge in Saint Louis County put it to me, cases are settled more on economic riskiness, not the law’s application to the facts.

In light of these concerns, the natural question is if you win a lawsuit must the loser pay your attorney fees? Generally, the answer is no. The so-called American Rule is that each side bears his/her own cost of litigation, including attorney fees. The two most common exceptions to the American Rule are when a contract which is disputed in the litigation provides otherwise or when a statute which is the subject of the litigation authorizes a grant of attorney fees. An example of a contract authorizing attorney fees is a landlord-tenant agreement stating that in case the tenant defaults and the landlord must file suit to enforce the lease, the landlord, as a prevailing party, is entitled to its reasonable attorney fees and litigation expenses. Similarly, a common statute which authorizes the award of attorney fees is the divorce statute in Missouri.

Thus, it is paramount not only to consider the likelihood of success in a particular case, but also the inherent risk that comes in pursuing the case.

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