I'll Sue You for Damages and Attorney Fees!

In general, American courts operate under what is known as the "American Rule" which requires each party to bear the burden for its own legal fees. The Supreme Court has upheld this principle on many occasions for a number of reasons. For example, the knowledge that a loss means paying the other side's legal fees might prohibit plaintiffs from bringing suit or defendants from defending themselves. The Court has also reasoned that a party should not be penalized for bringing suit or defending itself.

In recent years, both the courts and Congress have authorized fee-shifting specifically so that common citizens would have a means to bring suits that benefit the common good. Many of these deviations to the American Rule have been built into the Clean Air Act, the Americans with Disabilities Act, the Individuals with Disabilities Education Act, the Rehabilitation Act, the Civil Rights Act, and the Back Pay Act.

Here at home, Virginia courts do not typically favor awarding attorneys’ fees in litigation. This general rule prevails even to the party awarded judgement. “But we prevailed on a statute that authorizes recovery of legal fees!” you say? Even so, the judge will have tremendous discretion to determine if you will be awarded attorney fees, and how much he deems to be reasonable. If the judge decides on the day that you don’t deserve attorney fees, then be prepared for the responsibility of your own attorney fees.

Finding the “reasonableness” of a fee can be a procedural nightmare. In some jurisdictions, tables have been created to assist judges and alleviate the difficulties of calculating which fees are reasonable. In the Washington, DC metropolitan area, Courts have agreed since 1983 to find the reasonableness of attorney fees from a table called the Laffey Matrix, which is categorized and adjusted yearly for inflation. Northern Virginia specifically adjusted the Laffey Matrix for themselves and calls their table the Grissom Table. The Department of Justice (DOJ) crafted its own rules for, and maintains, its version of the Laffey Matrix.

The Court may also be swayed by procedural history or general misbehavior of a party during litigation or settlement negotiations when determining whether to award attorney fees. For example, in Ergun M. Caner v. Jonathan Autry, the court found that “Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work” and ordered the Plaintiff to pay the Defendant $34,389.59 in attorneys’ fees.

The bottom line is that recovery of legal fees is never a sure thing. If your attorney insists that it is, pretend he is a doctor and get a second opinion. Even with a statute authorizing the award of attorney fees, hope for it, but don’t count on it.

Knowing how much you may recover from litigation is difficult, but the Stanley Law Group can advise you on what to expect. If you need the advice of a qualified attorney, give us a call at (540) 721-6028.

Disclaimer: The article above is not intended as legal advice. We recommend you come to our offices for a proper legal consultation with our excellent attorneys to formulate a strategy which is suitable for your specific case.

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