Can a Losing Party Be Ordered to Pay the Winning Party’s Attorneys’ Fees? Yes, In the Following Circumstances

June 5, 2020

In the United States, the general rule, which derives from common law, is that each side in a legal proceeding pays for its own attorney.  However, in federal trials, the courts (not agencies) have the authority to order a losing party who has acted in bad faith to pay the attorneys’ fees of the winning party.

Another circumstance where the court will sometimes make a losing party responsible for all attorneys’ fees is trials between private plaintiffs and public or corporate defendants.  Therefore, attorneys’ fees provisions are most often found in civil rights, environmental protection, and consumer protection statutes, designed to “even out” the costs for both parties where one party might otherwise incur a disproportionate recovery.

The Equal Access to Justice Act (EAJA) makes the United States liable for attorneys’ fees of up to $125 per hour in many court cases and administrative proceedings that it loses (and some that it wins) and fails to prove that its position was substantially justified. EAJA does not apply in tax cases, but a similar statute, 26 U.S.C. § 7430, does.

In 1997, Congress enacted a statute allowing awards of attorneys’ fees to some prevailing criminal defendants.  Named the Hyde Amendment, this statute allows for the provision of attorneys’ fees by a prevailing defendant in the case of extreme prosecutorial misconduct.  However, the defendant would have to prove, “by a preponderance of the evidence,” that his prosecution was “frivolous, vexatious or in bad faith within the meaning of the Hyde Amendment.”  Therefore, provisions under the Hyde Amendment are rare, due to the burden on the defendant to establish his case.

At The GC Law Firm, we have experience helping prevailing criminal, and non-criminal, defendants obtain the awards to which they are entitled.  Contact us at (201)-488-1825, or through our website, to learn more!

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