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Fee-Shifting Statutes Can Help You Get Paid

By William Vogeler, Esq. | Last updated on

There's nothing quite like slaving for a client only to get stiffed on your bill.

Fee-shifting statutes can help with that. While they often tie-in to speciality practice areas, it's good to know when you can tap a statute for those fees your client can't afford.

The gateway to those fees is to prevail in court. It won't work for everybody, but some lawyers make a good living at it -- especially when fighting in the public's interest.

Federal Fee Shifting

The 2008 Congressional Research Report has a long list of fee-shifting statutes. Congress has created about 200 statutory exceptions to the common law rule that each party pays it way in court.

The major exception authorizes federal courts to order a losing party to pay fees for acting in bad faith. Otherwise, the fee-shifting statutes generally encourage private litigation to implement public policy.

Often, attorney-fee awards are designed to help level the playing field between private individual plaintiffs and corporate or governmental defendants. That's why fee-shifting is available in civil rights, environmental, and consumer protection cases.

"Fee-shifting statutes come with risk of course -- you may not win the case, or the court may cut your fees," says MyShingle attorney Carolyn Elefant.

State Fee-Shifting

There are too many state fee-shifting laws to list here, but you can start looking here. Or if you're interested in a contrary California perspective, the League of California Cities offered a view at an annual conference for city attorneys.

Andrea Saltzman, a certified appellate specialist, offered pointers in defending motions for attorney's fees. California provides for attorneys' fees under its private attorney general statute, but she said plaintiffs have to win a "significant" public benefit to get them.

So a city should not concede liability for attorney fees under Code of Civil Procedure Section 1021, she said, "just because it has lost an environmental, land use or any other 'public interest' case."

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