Calculating Lawyers' Fees: Theory and Reality


Because American courts do not traditionally provide for a prevailing party to recover attorneys' fees, the finance of civil lawsuits presents numerous problems for litigants. Insurance and contingent fees solve some of these problems, but in recent decades legislatures have in a number of instances provided for partial fee shifting. Such fee-shifting statutes require courts to set lawyers' fees. As a consequence, a lively debate over the proper standard for setting such fees has arisen, with sharp disagreement about which of two dominant systems will yield the desired results. Both systems have fierce defenders and sharp critics, with courts and commentators in each camp suggesting that the other is not thinking clearly or is ignoring reality. The study in this Comment considers actual fees in similar cases awarded by courts using each of the two major theoretical approaches. These data suggest that the debating parties may be arguing over a perceived difference that is not actually there.

By uclalaw