The following question was submitted to John Roska, whose column, "The Law Q&A," ran in the Champaign News Gazette. Note: The contents of this article have been edited by ILAO staff.

Question

In a court case, how does one side end up responsible for the other side’s lawyer fees? If I sue and win, does the other side have to pay my lawyer fees?

Answer

In Illinois, each party is usually responsible for their lawyer fees. The party that loses is not automatically required to cover the lawyer fees of the winning party. It takes a contract or a law to make the other side liable for your lawyer fees.

The general rule in this country, the so-called "American Rule" is that each party must pay its own attorney's fees. As stated in the 1975 Supreme Court case Alyeska Pipeline Service Co. v. Wilderness Society, in the United States, the winner can't collect lawyer fees from the loser.

That’s the opposite of the "English Rule," which applies to many other countries, including England. The English Rule states that the party that has lost will be responsible for all expenses or fees for both themselves and the other party. 

The main argument in favor of our American Rule is the same argument against the English Rule. A loser-pays system discourages people from going to court. The American Rule has each side pay their own lawyer fees, win or lose. It is one way to keep the courthouse door open to all.

As with any good rule, the American Rule has exceptions. These exceptions apply when a contract or a law shifts fees from one side to the other. This is often done to apply pressure on the other side in an attempt for a settlement to be reached quickly. 

Shifting fees by contract is acceptable because it’s done by agreement. If a party signs something that says they’ll pay the other side's lawyer fees, they’re typically bound by it.

Leases often say the tenant is liable for the landlord’s lawyer fees. This is one example of how contracts can shift the fees from one side to the other.

Laws and ordinances can also shift lawyer fees. This is usually done to encourage the enforcement of laws designed to protect the public.

Some laws make the other side pay your lawyer fees if you win the case and can prove they violated the law. This is an example of a one-sided shift in fees.

Other laws shift fees either way, by awarding lawyer fees to the prevailing party. That imposes the English Rule, where the loser pays the lawyer fees, even if they filed the suit.

Illinois divorce law can also make the other side pay lawyer fees, but it is not based on who wins or loses. The Marriage and Dissolution of Marriage Act’s lawyer is designed to even the playing field. Here, the Act removes the advantage a rich spouse has over a poor one.

When one spouse asks for the other to pay their lawyer fees, a judge can make the other pay an amount necessary. This way, the party asking for the fees can participate in the litigation.

While a party can be ordered to pay the other’s lawyer fees as a punishment, that is rare and only applies to the unacceptable part of the case, not the whole thing.

When a contract or law does make the other side pay lawyer fees, the fees can only go to the lawyers and must be reasonable. Parties who represent themselves can’t get lawyer fees. Lawyers' fees are only for hired lawyers.