Reimbursement of Attorney’s Fees the Exception, Not the Rule

Did you know that courts do not consider attorneys’ fees to be costs, nor are they automatically considered expenses by the court?

The American Rule:

In the United States   judicial system, each litigant – even a successful one – bears his or her own attorneys’ fees.

There are three exceptions to the American Rule:

1.    Laws which specifically allow for the recovery of attorneys’  fees (ex: M.G.L. c. 93A, Consumer Protection Act; M.G.L. c. 149 sec. 29,  Massachusetts Public Bond Statute).

2.   Contracts entered into by the parties which specifically allow for the recovery of       attorneys fees.

3.   Rules pertaining to damages which specifically allow for the recovery of attorneys’ fees.

Attorneys’ fees are not costs, and not automatically expenses in the eyes of the court.  “Costs” typically  include those fees assessed for filing documents with the Court, (for example, a plaintiff’s complaint) as well as  the sheriff’s fees for serving the summons and complaint.  Costs may also include deposition expenses,  and  fees incurred  for retaining an expert and other items recognized by the Court.   The party incurring such additional costs much specifically request reimbursement from the Court.

It is important to remember, when drafting or negotiating a contract, that  you  understand what costs  you are entitled to in the event of a breach by the other party, so that you can be made whole by recovering not only your damages, but all of your costs and expenses, including attorneys’ fees, in the event you are involved in litigation.