English rule (attorney's fees)

In the field of law and economics, the English rule (capitalized as English Rule in some jurisdictions) is a rule controlling assessment of lawyers' fees arising out of litigation. The English rule provides that the party who loses in court pays the other party's legal costs. The English rule contrasts with the American rule, under which each party is generally responsible to pay its own attorneys' fees, unless a statute or contract provides for that assessment. This can avoid a deterrent effect against a poor plaintiff, but can also give even a defendant who might defend successfully, good incentive to settle and pay, if it will cost less than the likely cost of defense and any appeals. The rationale for the English rule is that a litigant (whether bringing a claim or defending a claim) is entitled to legal representation and, if successful, should not be left out of pocket by reason of his or her own legal fees. It should be borne in mind that, in virtually all English civil litigation, damages are merely compensatory.

The English rule is followed by nearly every Western democracy other than the United States.[1][2]

United States jurisdictions

In the United States the "American rule" is generally followed, each party bearing its own expense of litigation. Alaska has long been an exception to the U.S. pattern, where the English rule applies. A very limited version of the English rule was adopted in Texas during the 2011 legislative session that applies only to the filing of a baseless lawsuit. Tex. R. Civ. P. 91a.[3] Then Texas governor Rick Perry called in his state of the state address for a one-way version of the English rule which would apply only to those who initiate a suit, the plaintiff.[4]

See also

References
  1. "Loser Pays" Walter Olson, pointoflaw.com, accessed March 10, 2011
  2. Capisio, Mary V. (2002). Awards of Attorneys Fees by Federal Courts, Federal Agencies and Selected Foreign Countries. Nova Publishers.
  3. "Texas goes English by jettisoning American Rule on legal fees". Retrieved April 15, 2015.
  4. Smith, Morgan (March 10, 2011). "Texas May Consider a Bill Forcing Losers in a Suit to Pay Opponents' Legal Fees". The New York Times. Retrieved March 10, 2011.
  • Black's Law Dictionary (8th Ed. 2004).
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