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Fee-Shifting Litigation Overwhelms the "American Rule"

May 24, 2010 | Posted in : Articles, Billing Practices, Coverage of Fees / Duty to Defend, Fee Award, Fee Request, Fee Shifting, Fees as Damages, Prevailing Party Issues, Scholarship on Fees, Study / Report

A recent article, “The Beginning of the Demise of the American Rule” in the DRI’s For the Defense, written by Jodie Steinberg of Ericksen Arbuthnot in Oakland, California advises counsel to consider whether an award of attorneys’ fees though the “tort of another” doctrine might apply to their case. 

The article concludes, “Since most state courts across the nation have been willing to award attorneys’ fees as damages under the “tort of another” doctrine, counsel should consider pleading the “tort of another” doctrine as a cause of action in their lawsuits.  Especially when dealing with professional liability cases, counsel should carefully consider whether an award of attorneys’ fees through the “tort of another” doctrine might apply.  If you believe that the doctrine might apply, this will greatly impact how you evaluate a case for your client.

Lastly, give forethought to some other significant implications of pleading the “tort of another” doctrine.  First, an insurance company involved in defending a case may not consider attorneys’ fees under the doctrine covered under the terms of the applicable insurance policy.  Also, if a party seeks attorneys’ fees in a cause of action through the “tort of another” doctrine, then arguably the attorney’s billing records would become discoverable during litigation and subject to attack.  Counsel should take care in deciding whether to plead the “tort of another” doctrine and may want to agree to stipulate to post-judgment consideration by the judge to protect billing from discovery until after a trial.”

Disclaimer:  This article is provided for informational purposes only.  Before taking any action that could have legal or other important consequences, speak with a qualified professional who can provide guidance that considers your own unique circumstances.