Can Parties Recover Their Attorneys’ Fees in Litigation?

 

A question that frequently arises for people who are considering whether to file a lawsuit, or contemplating how to respond to a suit that has been filed against them, is whether they can ask the court to require the opposing party to reimburse them for the attorneys’ fees they incur in the course of the lawsuit.

The short answer is: probably not – unless your case fits into certain exceptions. This is the so-called “American Rule,” in which litigants are expected to bear the cost of their own lawyers – win or lose. Many other countries have the opposite presumption, in which the losing party usually pays all the attorneys’ fees. In this country, however, the system is set up to encourage potential litigants to seek access to the courts without fear that they will have to pay the other party’s lawyer’s fees if they ultimately lose.

There are, however, exceptions to this rule. The three main exceptions in New Hampshire are:

  1. When the parties have a valid contract that provides for “fee shifting”;
  2. When the case is brought pursuant to a statute that provides for “fee shifting”; and
  3. When a party “is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention….”

The first two exceptions are relatively straightforward. If you enter a contract that says a certain party will pay the other’s fees or if you sue under a statute the provides for the losing party to pay the prevailing party’s fees, the courts will likely provide for such fee shifting.

The third exception arises from the case of Harkeem v. Adams, 117 NH 687 (1977) and is meant to protect litigants who were forced into litigation by the unreasonable actions of the other party.

 

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