Cameron Miranda
Fee-shifting is a legal concept that allows a winning party to recoup their attorney's fees from the opposing party or a governmental entity, instead of paying out of their own pocket. The purpose of fee-shifting provisions is to make it more affordable for individuals to assert their legal rights and pursue lawsuits, particularly in cases involving consumer law, employment law, and civil rights. Fee-shifting statutes vary across different jurisdictions, with some countries adopting a default rule that the losing party reimburses the other side's attorney fees. Fee-shifting can also come into play in landlord-tenant disputes, where tenants can recover their attorney's fees if the landlord is found to be in violation. Understanding fee-shifting provisions is crucial for both attorneys and clients when deciding whether to pursue a case.
| Characteristics | Values |
|---|---|
| Purpose | To make it cost-effective for the consumer to assert their legal rights |
| Who pays the attorney's fees? | The lawsuit’s proceeds, the opposing party, or a governmental entity |
| Who does not pay the attorney's fees? | The client |
| Applicability | Employment or civil rights laws, contract disputes, landlord-tenant disputes |
| Examples | Title VII of the Civil Rights Act of 1964, Family and Medical Leave Act |
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What You'll Learn
Fee-shifting provisions
The specific practices and requirements of fee-shifting provisions can vary. In some cases, the losing party may be required to pay the prevailing party's legal fees and costs. This is known as a "loser pays" system. However, it is important to note that fee-shifting provisions may include specific conditions or exceptions. For instance, in the case of unlawful discrimination claims, the prevailing party may only be entitled to reimbursement of legal fees if the original claim was deemed frivolous, unreasonable, or without foundation.
When entering into a fee-shifting agreement, consumers typically agree to cover some upfront expenses, such as a modest deposit and a small retainer. However, the majority of attorney fees and costs are covered by the fee-shifting provision or included in the final amount due upon resolution of the matter. This arrangement ensures that consumers can seek legal representation without the burden of high upfront costs, shifting the payment burden away from the client and towards alternative sources.
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Cost-effective legal rights assertion
Fee-shifting provisions are legal theories that aim to make it more affordable for individuals to assert their legal rights. Typically, under American legal practice, a plaintiff is responsible for their own attorney fees, regardless of the lawsuit's outcome. Fee-shifting statutes shift this burden, allowing attorneys to be paid from the lawsuit's proceeds, by the opposing party, or by a governmental entity. This makes it more cost-effective for individuals to enforce their rights, particularly in cases of consumer law, where individual losses may be too minimal to justify the expense of hiring an attorney.
For example, Massachusetts General Laws Ch. 186, Section 14, provides for reasonable attorney's fees in certain landlord-tenant disputes where the landlord is in violation. This encourages lawyers to take on cases on behalf of tenants, who may otherwise struggle to afford legal representation.
International treaties and conventions also provide a basis for asserting rights, particularly in human rights and environmental law. For instance, the European Convention on Human Rights has significantly influenced legal frameworks in Europe. Effective means clauses within these treaties require states to provide mechanisms for individuals to assert their rights, such as access to courts, due process, and rights of appeal.
However, it is important to note that effective means provisions do not guarantee the correctness of each domestic decision. Instead, they focus on ensuring access to fair and equitable treatment within the legal system. Additionally, strategic decisions such as selecting the appropriate venue and adhering to procedural rules are critical for effectively asserting legal rights.
Research has also highlighted the role of lawyers and legal consciousness in civil access to justice. Studies suggest that increasing the availability of lawyers may not be the most effective solution for resolving civil legal problems. Instead, promoting rights assertion, such as taping police-citizen encounters, and increasing legal rights knowledge among the public, may be more impactful in empowering individuals to seek justice and protection within the legal system.
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Attorneys' fees
Contingency fees are common in personal injury cases, where the lawyer gets paid if the client wins. While this can be a generous cut, it may be a good deal if the attorney is taking on a significant risk. In most cases, the financial award does not include attorney fees, which must be paid out of any financial recovery.
Hourly rates are charged for almost everything except personal injury cases and standard routine matters. The rate is determined by the attorney's experience and the generally accepted charges for similar matters in the legal community. A retainer fee is usually requested upfront, against which the attorney bills their time.
Fixed fees are charged for standard routine matters, such as wills, deeds, real estate title searches, simple bankruptcies, drafting basic contracts, traffic offenses, or minor criminal matters.
It is important to discuss attorney fees during the first conference with a lawyer. The client and attorney should sign an agreement regarding fees to ensure a clear understanding and a good working relationship. This agreement should also explain how litigation costs, such as court fees, expert witness fees, and travel expenses, will be paid.
In some cases, fee-shifting provisions allow attorneys to be paid from the lawsuit's proceeds, by the opposing party, or by a governmental entity, instead of the plaintiff's pocket. Fee-shifting statutes aim to make it cost-effective for consumers to assert their legal rights, especially in cases with minimal individual losses. For example, in certain landlord-tenant disputes, fee-shifting statutes provide for reasonable attorney fees when the landlord is in violation and loses the case, making it more likely for lawyers to accept cases on behalf of tenants.
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Default rules
In the United States, the default rule is that each party in a dispute pays for their own attorney from start to finish. This is in contrast to the United Kingdom, where the losing party has to reimburse the winner for their legal fees. This "American Rule" can make it unaffordable for Americans to pursue legal action, as they are paying by the hour with no guarantee of reimbursement.
However, there are exceptions to the default rule, where the winner of a lawsuit, usually the plaintiff, can recoup their attorney's fees. These are known as fee-shifting cases and are often seen in employment and civil rights laws. For example, Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act contain fee-shifting provisions. In Texas, contract disputes with LLCs also allowed for fee-shifting by default as of 2021.
In fee-shifting cases, the plaintiff's attorney may require an upfront sum of money and may also take a contingency percentage, such as one-third of the damages recovered. The Illinois Rules of Professional Conduct state that courts may consider whether the fee is fixed or contingent when determining a reasonable fee. Federal courts may also consider the contingent nature of the fee when calculating the lodestar, though contingency for the risk of loss may not be considered in enhancing the lodestar to avoid double-counting the risk of loss.
The plaintiff's legal services agreement (LSA) should mandate full payment of fees and costs from the fee-shifting defendant upon settlement, unless a lesser amount is approved. The LSA should also include "anti-divide and conquer" language, anticipating that the client may prioritize obtaining damages over paying the attorney's fees.
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Anti-SLAPP motions
Anti-SLAPP laws provide defendants with a mechanism to swiftly dismiss frivolous lawsuits, known as SLAPPs (strategic lawsuits against public participation), which are filed against individuals or entities exercising their rights to free speech, press, assembly, petition, or association. As of June 2025, 38 states and the District of Columbia have implemented anti-SLAPP laws, offering varying levels of protection. These laws empower defendants to file a motion to strike or dismiss on the grounds that the case involves protected speech or conduct related to a matter of public concern.
The purpose of anti-SLAPP laws is to discourage the filing of SLAPP suits and prevent them from inflicting substantial financial burdens and chilling protected speech. They typically offer critical protections to the news media and journalists, allowing defendants to secure a swift dismissal, recover attorney's fees and costs, and immediately appeal a trial court's denial of their motion.
For instance, in California, Code of Civil Procedure § 425.16 provides a quick and inexpensive defence against SLAPPs. It enables defendants to file a special motion to strike at the outset of a lawsuit if it arises from conduct that falls within the rights of petition or free speech. This statute explicitly covers speech or writing related to issues under consideration by legislative, executive, or judicial proceedings, as well as speech in public forums and other petition or speech conduct concerning matters of public interest.
Notable examples of successful anti-SLAPP motions include the case of Fredrik Gertten, a filmmaker who prevailed in an anti-SLAPP motion after being sued for defamation by Dole Fruit Company over a documentary about farm workers. Another case involved talk radio host Tom Martino, who won an anti-SLAPP motion when sued for libel by a watercraft retailer, with the court acknowledging the expectation of comedic exaggeration in talk radio.
Anti-SLAPP laws vary significantly across jurisdictions, and it is essential to seek legal advice specific to one's state or region when confronted with a potential SLAPP suit.
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Frequently asked questions
Fee-shifting cases are those in which the attorney's fees are paid by the opposing party, or a governmental entity, instead of out of the plaintiff's pocket.
Legal representation can be expensive, and the average person might not be able to afford it. Fee-shifting tries to make it cost-effective for the consumer to assert their legal rights.
Many fee-shifting claims arise in the consumer law setting, where individual losses are too minimal to justify hiring an attorney. Massachusetts General Laws Ch. 186, Section 14 is a good example of a fee-shifting statute that provides for reasonable attorney's fees in certain landlord-tenant disputes. Many employment or civil rights laws also have fee-shifting provisions, such as Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act.
In the US, the default rule is that each party in a dispute pays for their own attorney from beginning to end. In contrast, the default rule in the UK is that whoever loses a lawsuit has to reimburse the other side for what they paid their attorney.
Yes. Employers might try to bring an "anti-SLAPP" motion, claiming that the employee's lawsuit is infringing on their First Amendment rights. They might also try to claim that the lawsuit is frivolous or in bad faith, which could allow them to penalize the employee who sued them. However, such arguments are rarely successful in convincing a judge.
