Whether the result of decreased civility among litigants, judges’ frustration with frivolous litigation or other reasons, there has been an increase in the frequency and amount of sanctions and attorneys’ fees awarded to litigants in both state and federal courts. While the American Rule of paying one’s own attorneys’ fees still prevails, as opposed to the British Rule of the losing party paying the prevailing party’s attorneys’ fees, courts seem to be more willing to award sanctions, including attorneys’ fees, against litigants and their attorneys who file frivolous suits, unnecessarily delay litigation, or raise unsupported legal or factual arguments.
The philosophy behind the American Rule is to allow open access to the legal system, as it is argued that the British Rule closes the courts to litigants pursuing opponents with greater financial resources. There are numerous exceptions to the American Rule, including statutes and contracts that provide for attorney fee shifting. Statutory fee shifting often involves consumer fraud, employment discrimination, violation of civil rights and other remedial and specific statutes. Our contract law generally honors parties’ agreement to shift attorney fees to the loser in the event of a dispute, unless there is a great disparity of bargaining strength.
American courts inherently possess statutory and common law contempt power to sanction parties that fail to follow their rules, file frivolous litigation, or use litigation to harass. Federal Rule 11 and Illinois Rule 137 empower courts to also assess monetary sanctions. While these rules are not new, trial and appellate courts have recently increased the frequency of their use and the amount of monetary sanctions awarded. The upshot is that lawyers need to be much more diligent before filing suit, requiring more information and documentation from their clients. Litigants and their counsel are also advised to act professionally and observe proper decorum in pursuing their claims. This increased investigation and due diligence not only protects lawyers and their clients from possible sanctions, but helps maintain the quality, civility and accessibility of our justice system.
Brooks, Tarulis & Tibble, LLC has long represented clients before various courts and other decision making bodies, addressed fee shifting statutes and prepared contracts that shift the risk of attorneys’ fees. If we can assist you in this regard, please contact me.
Douglas C Tibble