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Since 2003, the Recording Industry Association of America (RIAA) has filed numerous lawsuits against those who download and share music files. It succeeded in collecting $2,000 from a 12-year-old girl living in a housing project. However, a federal judge recently awarded attorneys’ fees to a defendant who showed that no files were on her hard drive. The general rule in U.S. law is that each side pays for their own attorney fees, as opposed to the loser paying in England. This enables poor litigants to get their day in court, even if they may lose. However, there are two main exceptions under U.S. law. The first main exception is if the loser of a case breached a contract, such as a promissory note, that expressly provides that any breach thereof will result in payment of attorney’s fees. This is only fair, since the party who did not breach the contract would not have incurred any fees otherwise. The second main exception is if there is a statute (i.e., a law created by legislature) that specifically allows a judge to award attorney fees to the winning party. There are statutes in a number of legal areas that grant the judge this authority, such as family law, environmental law, and civil rights / discrimination law. In the RIAA example above, attorneys’ fees were awarded under the federal Copyright Act. Civil rights statutes, such as those addressing employment discrimination, include fee shifting provisions. Winning attorneys are deemed “private attorney generals” who enforce the rights of the public, and thus deserve payment of their fees. In family law, the judge is permitted to consider a number of factors in awarding attorney fees. The main consideration is whether one party is much richer than the other. Other factors include: any willful or malicious conduct, the reasonableness of the claims and defenses, the extent to which an award of fees would deter others from making meritless claims, and the reasonableness and diligence of the parties throughout litigation. In setting the actual amount of attorney fees, the court can consider: the time and labor of the attorney, the novelty and difficulty of questions presented, the customary fees of attorneys with similar experience and reputation, and the result obtained. |
