“Shouldn’t the person who ruined our marriage pay all for the legal fees for divorce? It’s their fault we’re getting divorced, not mine.”
At Dixon & Moseley, P.C. we observe a fundamental misunderstandings about America’s legal system is that legal fees can be collected from the opposing side. For the most part, America, including Indiana, has rejected this: the English Rule.
Under the English Rule, the prevailing (winning) party generally paid the others legal fees. The American Rule is much different. With it, each side pays their own legal fees. There are three (3) major exceptions.
First, in domestic relations cases, which comprise the largest segment of civil cases in Indiana, the courts have authority, under powers given to them by the General Assembly, to award legal fees from time to time. For the most part, this is based on disparity of the incomes between the parties or wrongdoing.
The second, is where the General Assembly (or Congress) observes a power imbalance, where the proverbial titan faces the little guy, it may pass a law to allow recovery of attorney’s fees.
For example, with the recent passage of SB 292, an individual wronged by a local ordinance interfering with certain firearms’ rights may be able to sue and recover attorney’s fees. Nevertheless, such statutory provisions are amongst few exception to the American Rule.
With certain criminal acts, there are statutory provisions allowing for an attorney fee award. However, despite this, there must be a resource from which to collect any such fee. If there is not, the old adage, “it (the judgment) may no be worth the paper it is printed on” may well apply.
The third, and final category, involves criminal or quasi-criminal cases. Here there is potential loss of freedom. As such, if a defendant/litigant is without sufficient means, the court typically appoints a criminal defense attorney in order to comport with the constitutional right to counsel.
All said, a litigant who engages in litigation with the expectation his/her/its legal fees will be paid by the opposing party is likely in for a surprise. In most cases, it simply does not work out this way.
For these reasons, any person in a position to consider litigation in advance, should be mindful and cognizant of the costs relevant to the legal objective. Failure to do so eliminates a choice–not to engage the system in some cases. Who will pay the legal fees; likely you will.
Not all actual or perceived legal wrongs have a cost-effective remedy. While a case may be prosecuted for moral or emotional reasons, a prudent consumer understands and recognizes this beforehand.
At Dixon & Moseley, P.C. – Indianapolis Divorce Attorneys, we hope you find this blog post helpful in considering how to spend your time and money. That is the key to being satisfied with the law, lawyers, and the legal system. Be informed. Take a reasoned approach.