St. Mary's Law Journal


In Texas, the complex and confusing rules defining proof of attorney’s fees require simplification. Texas, like many other states, follows the American Rule, meaning the plaintiff and defendant each pay their own attorney’s fees. The United States is the only common-law jurisdiction and virtually the only industrialized democracy following the American Rule. Two primary justifications support following the American Rule. First, the American Rule supports individuals seeking a judicial remedy by removing the obstacle of paying an opponent’s legal fees. Second, it reduces potential litigation, attendant time and expense that would be necessary to dispute legal fees if they were recoverable. Legislation has had substantial effect on the American Rule in recent years. Now many scenarios exist where attorney’s fees may be recoverable. These changes attempt to reinforce the American Rule by maintaining fee recovery for only one party. If successful in court, the party bringing a claim may recover attorney’s fees from the opposing party. If unsuccessful, the party bringing a claim will not be responsible for the opposing party’s fees. However, recovery of attorney’s fees is ultimately contrary to a tenet of the American Rule because recovery requires settlement of an additional dispute that increases, not decreases, the need for litigation. The expansion of fee litigation makes this an issue of growing importance. Diverse and sometimes contradictory rulings complicate navigating research regarding the litigation of attorney’s fees. Additionally, while courts may adopt or administer particular rules involving attorney’s fees, there is rarely any analysis about proper application. Many pitfalls and opportunities exist at trial. The potentially high cost of litigation requires forethought in the preparation of the litigation of attorney’s fees.


St. Mary's University School of Law