The first time I got an attorney’s fee award from a judge in one of my cases, I kept the check stub in my desk drawer for years. The fee award was for a discovery motion (the other side had been wrongfully withholding documents and needlessly being dicks about it). As such, they only had to pay us a few thousand dollars — nowhere near the total amount of legal fees expended in the case. Still, I liked pulling out that check stub from time to time to remind myself that it was possible, under the right circumstances, to get the other side to pay your legal fees.
I only needed to do that because fee awards are extremely rare in almost every practice area. Even when you do get a fee award, they are generally like the fees awarded in my discovery motion: only a small portion of the total fees charged to the client at the end of the day and only attributable to some cordoned-off wrongdoing by the other side in one particular area of a case as it slogs through the court system for years. Out of the hundreds of cases I’ve worked on, I can only think of two in which the other side had to pay essentially all of our side’s legal fees.
Lawyers spend a lot of time explaining to clients the so-called “American Rule,” which is, basically, that each side in a lawsuit pays their own attorney’s fees regardless of who wins. In some countries, the loser pays the other side’s legal costs, but the United States is not one of them (hence, the “American Rule”).
There generally has to be a statute, rule, or contractual provision specifically authorizing fee awards, under a limited set of circumstances, in order for one side to be forced to pay the legal fees of the other. Judges in most jurisdictions also typically have the ability to make a fee award under some version of their “inherent powers” to punish wrongdoing within their courtrooms, although even that is usually enumerated in a statute or a rule of procedure (very occasionally, case law alone may serve as the basis of a fee award).
Anyone who has been a litigator long enough can tell you that even when fee awards are authorized by a rule or statute, they are exceedingly rare. This has something to do with 1.) overzealous lawyers requesting fee awards in too many milquetoast situations (if you portray every perceived slight as the most egregious you’ve ever encountered you get boy-who-cried-wolfified, but a lot of lawyers do it anyway) and 2.) judges being dispositionally reluctant to award fees in the first place (judges themselves came up as attorneys following the American Rule and were then selected for the bench in part for “judicial temperament,” aka not being inclined to think one side or the other is exclusively in the right).
A delicate dance has long existed between lawyers telling litigants like 20 times that they probably aren’t going to recoup their fees from the other side, and clients sort of getting it, eventually. But as with many things in American life, Donald Trump is threatening to upset the balance. Though not in his usual way: this time Trump is disrupting things by bringing so many stupid, frivolous legal claims that he’s giving people the false impression that attorney’s fee awards are something other than a rarity.
In the latest example, Donald Trump was ordered to pay approximately $400,000 of The New York Times’ legal fees in a since-dismissed lawsuit that he brought against the Times, several of its reporters, and his own niece. Trump’s lawyers argued that the nearly $400K was excessive, despite claiming in the original lawsuit that Trump had been damaged to the tune of $100 million. The judge found the defense costs reasonable, however. The judge also found this to be the perfect case in which to exercise a statutory authorization for fee awards meant to discourage frivolous defamation lawsuits filed to silence journalists.
Though The New York Times case is the latest and perhaps most high-profile instance of the former president being ordered to pay the other side’s costs in litigation, it is far from the only example. In 2020, Trump was ordered to pay former porn actress Stormy Daniels $44,100 for her legal fees in a dispute over their hush money contract. In 2023, he and his lawyer were ordered to pay nearly $1 million to Hillary Clinton as well as several political operatives in a lawsuit the judge referred to as “strategic abuse of the judicial process.” It just goes on and on.
Now, in addition to having to explain the American Rule, lawyers are going to have to explain to their clients why they can’t get their fees awarded because the lawsuit they’re facing is far less dumb than any of those brought by our former president. Take it from me though and save yourself a few tenths of an hour in billable time: unless you are being sued by Donald Trump, you are almost certainly going to have to pay your own legal fees.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at [email protected].