In the world of litigation, there seems to be a growing misconception that fee awards, contrary to widespread legal practice, are not as rare as they truly are. This can be traced back to the plethora of lawsuits linked with former president Donald Trump, which have culminated in the award of legal fees far more frequently than in any average legal scenario.
In normative circumstances, fee awards are extraordinarily rare across almost every area of legal practice. As an illustration, revisiting the first time an attorney gets a fee award from a judge is often a badge of honor, kept safely and reviewed occasionally as a reminder of a rare and hard-earned accomplishment. Such was the experience narrated in an article on Above the Law, where the attorney shared his experience of securing a fee for his client over a discovery motion.
Legal professionals consistently explain and reinstill in their clients the so-called “American Rule.” This principle dictates that each party in a lawsuit foots their own attorney’s fees, irrespective of the case’s outcome. However, the United States, unlike several other countries, adheres strictly to this rule, which results in fee awards being an exceptional occurrence rather than the norm.
Notwithstanding the stringent stipulations of the “American Rule,” Donald Trump’s lawsuits are inadvertently steering a subtle but significant divergence from the widely accepted perspective. His lawsuits have resulted in attorneys’ fee awards more than once. For example, courts ordered Trump to foot approximately $400,000 of The New York Times’ legal fees and $44,100 for Stormy Daniels’ legal fees. In 2023, he and his lawyer were also compelled to pay nearly $1 million to Hillary Clinton.
Emerging from this series of fee awards in favor of Trump’s opponents is a false perception that fee awards are standard in legal battles. This misconception complicates the job of corporate attorneys who now must not only explain the “American Rule” but also why fee awards resulting from Trump’s litigation are not commonplace and shouldn’t be expected routinely.
Fee awards remain the exception in litigation, not the rule. Regardless of the high-profile cases making the headlines, the reality stays that clients are likely going to finance their own legal fees, unless of course, you find yourself battling in the court against Donald Trump.