Let’s say your twenty-something daughter buys a late-model used car from a dealership, paying extra for a top-of-the-line manufacturer’s warranty, only to find that the car has a hidden, major safety defect which will cost thousands of dollars to correct. Worse, the manufacturer refuses to correct the defect, rendering the car useless. You and your daughter don’t have $30,000 or more to pay lawyer’s fees to sue. What do you do?
This actually happened to a former client of mine a few years back. I got my client’s daughter a decent settlement, although it took several years, and my client did not have to pay any fees for my work. Plus, I got paid for my attorney time by the manufacturer which refused to honor its warranty. How did this happen you might ask? It’s called attorney’s fee-shifting, and in this adversarial world you should be aware of it. Attorney’s fee-shifting is one of the great economic equalizers between ordinary individuals, and the governmental or corporate interests which tend to ignore them.
The idea of putting fee-shifting provisions in remedial legislation began in earnest in the 1970s. Today, in Illinois and the federal court system, there are hundreds of laws which incorporate attorney’s fee-shifting for prevailing parties. The idea is to attract competent lawyers to take cases for aggrieved individuals who cannot afford to pay legal fees. Attorney’s fee-shifting provides that if the plaintiff wins at least some part of the case (or the case settles favorably for the plaintiff), the plaintiff’s attorney can petition the court to have his or her fees paid by the losing defendant. For example, many if not most consumer protection, civil rights, religious liberty and other constitutional protections, employment disputes, landlord-tenant (especially in Chicago), discrimination in housing or employment, and many other laws contain attorney’s fee-shifting provisions.
If you do hire a lawyer in an attorney’s fee-shifting case you should pay particular attention to the legal services agreement. Unless you are paying regularly, by the hour, for all attorney’s fees to be incurred in litigation, the law requires attorneys to have written legal services agreements with their clients. Such agreements should clearly spell out whether you have to pay a retainer fee, a reduced hourly rate, or costs and expenses as they accrue; whether the lawyer will take a percentage of any damages you recover; and the hourly rate at which the attorney will petition the court for attorney’s fees if you win (the higher the hourly rate the less that may be left for you in settlement).
Finally, there are several other things you will want to ask the attorney. How strong does the attorney believe your case is? What are the possible weak points? How long is the case likely to take to complete? How much of your time likely will be required if the case does not settle and goes to trial?
In any event, attorney’s fee-shifting has become a major part of litigation in the 21st century. You should keep it in mind if you find you need a lawyer’s litigation services.
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Posted on Thu, July 14, 2016
by Andrew Willis filed under