The Defendant (or Plaintiff) should pay your Legal Fees!
A question that is asked by almost every litigation client is “can I get the other side to pay my attorney’s fees if I win?” The general rule is no, the prevailing litigant is not entitled to fess from the loser because no person should be penalized for merely defending or prosecuting a lawsuit. See Harkeem v. Adams, 117 N.H. 687, 690 (1977). I tell clients that there are three (3) ways to be awarded legal fees on a successful suit. First, a written contract which provides for the award of legal fees (reasonable attorneys’ fees) to the victor. Second, you can be awarded legal fees if your successful counts include statutory provisions (fancy word for laws) that allow for that. Lastly, a successful litigant can be awarded legal fees if they encounter “bad faith” litigation. What is that?
The often-cited case in New Hampshire comes from the seminal case Harkeem v. Adams. In that case the New Hampshire Supreme Court articulated the rule for fee shifting as follows:
“Where an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention, an award of counsel fees on the basis of bad faith is appropriate.” Id. (internal citations omitted)
The Court’s rational for departure from the traditional rule was, shifting the cost of what should have been an unnecessary judicial proceeding to the responsible party, has long been recognized in New Hampshire in a related line of cases wherein attorneys’ fees have been awarded on the basis of the courts’ power to enforce their own decrees. Id at 691.
Wow! A case from 1977—is that still good law? Subsequently in Glick v. Naess, 143 N.H. 172 (1998), the New Hampshire Supreme Court went further and defined a “reasonableness” standard. See Glick, 143 N.H. 172 at 175 (1998). “[O]ne exception exists [to the general rule] where a party must “litigate against an opponent whose position is patently unreasonable.” Id. A claim is patently unreasonable when it is “commenced, prolonged, required or defended without any reasonable basis in the facts provable by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be.” A party’s unreasonableness “is treated on an objective basis as a variety of bad faith and made just as amenable to redress through an award of counsel fees as would be the commencement of litigation for the sole and specific purpose of causing injury to an opponent.” Id. (internal citation omitted).
In sum, the prevailing rule that each litigant pays his or her own costs is controlling in the vast majority of cases absent a showing of independent entitlement via contractual right or statutory grant.
The exceptions to the general rule are litigation to secure a clearly defined established right that should be freely enjoyed or a claim that is patently unreasonable on its face such that it is litigated for the specific purpose of causing injury to an opponent. One last word of caution. In our experience, most litigants subjectively, passionately and earnestly believe that the opposing party is acting unreasonably and in bad faith. A Court is going to apply an objective test. If you are a litigant, it is important to trust your counsel and ask them to evaluate any claims appropriately so you can make the best, informed decision.
