Why doesn't the other side have to pay my attorneys fees if they were at fault for causing the accident? This is a frequently posed inquiry that I receive from my clients. It is a fair question. Unfortunately, the idea that each party typically bears its respective share of legal fees is probably one of the most misunderstood rules in our system of civil justice. The concept -what is known as the American Rule -provides that each litigant is responsible for his or her attorney’s fees and the costs of the litigation. Clearly, as the name suggests, the rule in other countries is different. Under the American Rule, a party is responsible for paying their lawyer, unless a rule of court, a statute or a contract provides that the other side -typically the losing side- pays attorneys fees and costs to the prevailing party. The ability to collect attorney’s fees and costs incurred from the other side is a significant factor in many cases, where it is available. Some prevailing party attorney fee provision are found in:
- The consumer protection statutes and the unpaid wages statutes, which contain what are commonly called fee-shifting provisions
- Bad faith insurance provisions
- Contracts, which will frequently provide that the prevailing party in a dispute arising under the contract is entitled to collect attorney’s fees and costs from the non-prevailing party in litigation
However, in the typical personal injury matter, and civil matters generally, the application of the American Rule provides that each party bears his or her attorneys fees and costs. In a car accident case that goes into litigation, or to trial, there are no applicable fee-shifting, contractual or statutory provisions that relieve a litigant from the responsibility for his or her attorney's fees and costs.
It frankly surprises many people that in order to vindicate their rights, or be made whole in the wake of a Maryland automobile accident, that they are not entitled come to collect their attorneys fees from the losing party or the at-fault party but rather must pay those attorneys fees and costs themselves, if they choose to hire a lawyer.
It's a significant point. For example, if an individual is injured in a car accident and incurs medical expenses, loses wages and sustains pain and suffering, they certainly and clearly have a claim for damages against the individual that caused the accident. However, many individuals involved in such a scenario are not able to pursue the case on their own, but rather choose to employ an experienced personal injury lawyer to handle the case for them. Most personal injury cases are handled on what is called a contingency fee basis. A contingency fee is one that only attaches if the contingency [i.e., a financial recovery] occurs. A common contingency fee arrangement calls for a lawyer to retain 1/3 of the recovery as a fee for claims that settle before a lawsuit is filed, and up to 40% of the recovery after a lawsuit it filed. I offer a reduced attorney fee program that employs lower percentages. The injured person will ultimately recover 2/3 of their economic and non-economic damages after their attorney has been paid. Accordingly, it vital to secure the services of an experienced and diligent personal injury attorney who has the skills and background necessary to maximize your recovery.