Attorneys’ Fees: The American Rule, Exceptions, and Effective Recovery

This session explores the historical origins of the American Rule from its 1796 foundational case, distinguishing it from the English Rule where the loser pays. Participants will examine policy considerations both supporting and criticizing the rule, along with an overview of its numerous exceptions.

This session examines how courts enforce contractual attorneys’ fee provisions and the discretion involved in determining reasonableness. Practical examples from recent case law illustrate key considerations when drafting and litigating fee-shifting clauses in contracts.

Participants will explore the extensive landscape of federal statutes providing fee-shifting exceptions, including the ADA, Civil Rights Act, FLSA, FDCPA, and Clean Air Act. The session addresses how these provisions encourage enforcement while examining concerns about potential abuse.

This session covers discovery sanctions under Rule 37, certification requirements under Rule 11, and courts’ inherent authority to sanction bad faith conduct. Key Supreme Court guidance on ensuring sanctions remain compensatory rather than punitive will be discussed.

A short intermission allowing participants to refresh before continuing with the remaining program sessions on offers of judgment and fee recovery strategies.

This session defines offers of judgment and their unique features under Federal Rule 68, including timing requirements, irrevocability principles, and acceptance procedures. Participants will learn how rejected offers trigger cost-shifting consequences and explore the circuit split on summary judgment interactions.

Participants will compare state offer of judgment provisions with the federal rule, focusing on states allowing any party to initiate offers and those providing independent bases for attorneys’ fees. Choice of law considerations under Erie analysis and key state examples from Florida, Georgia, and Alaska are examined.

This session covers Federal Rule 54 requirements, the lodestar method for calculating reasonable fees, and the Johnson factors. Participants will learn strategies for supporting fee requests with expert testimony, handling privileged billing information, and documenting flat fee arrangements.

This session provides practical guidance on timing offers, understanding state rule variations, and choice of law considerations in federal court. Client counseling points regarding judgment appearance, public perception, and disclosure requirements are also addressed.

Drawing from recent cautionary cases, this session examines fee requests gone wrong, including excessive billing, dishonest reporting, and manufactured claims. Participants will learn how courts scrutinize fee petitions and the consequences of ethical violations in fee recovery.