If losers pay winners’ attorney fees, why not hire the most expensive attorney?

If the losing side in a civil suit generally pays the winner’s attorney’s fees, why doesn’t everyone hire the most expensive attorneys?

First, because the U.S. generally does not follow the “loser pays” rule. Some states have such rules, and some cases have such a rule, but it’s not a universal rule in the U.S. (it should be, but I digress).

Second, because nobody knows in advance whether he/she is going to prevail in the law suit, so even if you were in a jurisdiction that followed a “loser pays” rule, that would not guarantee who the winner or loser of a particular law suit will be. So, hiring a very expensive lawyer “knowing” you’ll win the case and thus be awarded all of your attorneys’ fees is extremely irrational.

Third, the winner doesn’t necessarily get a judgment for all attorney’s fees incurred in prosecuting the case to completion, but only what the court deems to be “reasonably incurred” attorney’s fees. So, if you hired an attorney who charges twice as much as what the court deems reasonable, the judge would award you half of what you actually incurred, not the full amount.

Fourth, even if you were awarded most or all of the attorney’s fees you incurred, you’d still have to collect those fees from the losing party, which is often an expensive endeavor in its own right. Some people think that if you win a judgment against someone that the court hands you a coupon you can redeem for the money. Not so. And party against whom you obtained the judgment doesn’t have to just write you a check on the spot either. Worse, the loser could file for bankruptcy and just discharge the judgment debt.

Utah Family Law, LC | | 801-466-9277

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