An accurate assessment of damages is critical for case evaluation, and the cost of dispute resolution plays an important role in deciding to pursue claims. Even strong liability cases can fail to make economic sense. That is why a thorough case appraisal should thoughtfully consider the attorney fees to be incurred. And equally important, an objective case valuation should assess the likelihood of recovering attorney fees.
The “American Rule,” which specifies that each party must bear its own attorney fees, is a lesson for law school’s first year, and though the rule has been slightly modified to encourage certain litigation in the public interest, fee-shifting remains the exception rather than the rule. Against this background, professional responsibility obliges counsel to keep clients informed about litigation economics (Cal. Rules Prof. Conduct, rule 1.4)—something critically important as a case approaches the inevitable mediation. Unfortunately, experience teaches that an exacting analysis of litigation cost and exposure to fee-shifting often is an afterthought, and that the development of case strategies, discovery plans, and tactical maneuvers occurs without thoughtfully weighing the implications of the American Rule and its exceptions. This is a recurring issue in arbitration.
Originally published in The Journal of the Litigation Section of the California Lawyers Association Vol. 34 • No. 2 • 2021.
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