Legal matters, particularly lawsuits, address complex matters that tear at the social fabric of our diverse society, ranging from criminal cases, such as murder, to a hostile divorce proceeding between spouses disputing custody. As wide spread misconception is that the other side, who litigants often believe will “lose,” should or will be ordered to pay legal fees.
In the United States, and in Indiana,1 started with English law or common law. Under the English Rule, the party that loses or does not prevail pays the legal fees for both litigants. However, the US and Indiana quickly adopted the “American Rule” in the sense of making access to courts more or less equal. This mandates that each side pay their own legal fees.
Like most good rules, there are three significant exceptions. The first comes from the United States Constitution and applies to criminal cases. Under the Sixth and Fourteenth Amendments, the parties have the right to have a trial court appoint them counsel if they cannot afford it in a criminal case, as this involves the potential for loss of freedom.
The rest of the major exceptions occur in the civil arena. The second and perhaps most known applies to divorce and paternity cases. A trial court may order a party to pay legal fees based on differences in income or bad actions. There are several statutory provisions to give a divorce or paternity court vast authority to make such an award to accomplish fairness.
The third exception comes in wrongful death cases for children and is the most current development in the law. The Legislature allows a trial court or jury to award attorneys fees in certain cases where the child be unmarried and have no dependents.2
Fourthly, and as a final way to tie this blog to its educational purposes, certain victims of crime can recover attorney fees incident to a criminal and/or civil litigation. Stated differently, because you can lose your freedom in a criminal case, and where the Legislature allows in the civil area to provide fairness, attorney fees may be awarded.
This blog is written by attorneys at Dixon & Moseley, P.C. who practice throughout the state of Indiana. This is not intended to be a solicitation for legal services or provide legal advice.